Wesley v. Commonwealth
| Decision Date | 21 November 1949 |
| Citation | 56 S.E.2d 362,190 Va. 268 |
| Parties | WESLEY. v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Gilford Wesley was convicted in the Circuit Court of the City of Richmond, Harold F. Snead, J., as a third offender, and he sued out a writ of error.
The Supreme Court of Appeals, Miller, J., held that the conviction was proper, and affirmed the judgment.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
W. A. Hall, Jr., Richmond, for plaintiff in error.
Attorney General J. Lindsay Almond, Jr., Assistant Attorney General Ballard Baker, for Commonwealth.
On December 14, 1948, an information was filed in the Circuit Court of the city of Richmond against Gilford Wesley in which it was charged that he had been convicted of a felony on three previous occasions and in each instance sentenced to the penitentiary. On February 7, 1949, he was tried and convicted as a recidivist and a term of ten years confinement in the penitentiary imposed.
The material portion of section 5054 of the Code of Virginia 1942, Michie, under which accused was prosecuted is as follows: "When a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if it shall come to the knowledge of the Superintendent of the Penitentiary that he has been sentenced to a like punishment in the United States prior to the sentence he is then serving, the superintendent shall give information thereof without delay to the Circuit Court of the city of Richmond. * * * the court may sentence him to further confinement in the penitentiary for a period of not exceeding five years, if he has been once before sentenced in the United States to confinement in the penitentiary; but if he has been twice sentenced in the United States to such confinement, he may be sentenced to be confined in the penitentiary for such additional time as the court trying the case may deem proper. * * "
Exclusive of the conviction now under review, the record establishes that accused had been convicted three times in the Corporation Court of the city of Newport News, Virginia. Those convictions are as follows:
November 18, 1943, for housebreaking and sentenced to five years.
February 1, 1946, for grand larceny and sentenced to five years.
July 15, 1947, for housebreaking and sentenced to three years.
The felony for which the last sentence of three years was imposed was committed on the -- day of July, 1947. The record further discloses that while accused was serving his second term for felony, i. e., the sentence imposed upon him February 1, 1946, he escaped, and, while a fugitive, committed the crime for which he was convicted on July 15, 1947. In short, he had not finished serving the penalty given under his second conviction at the time he committed the offense for which his third term was imposed. When he was returned to the penitentiary under the third sentence of July 15, 1947, he was confronted with and had to serve the balance of the term imposed for his second conviction.
Accused asserts (1) that the judgments of November 18, 1943, and July 15, 1947, are void and that no prosecution as a third offender under section 5054 can be based on such convictions and sentences, and (2) that if these judgments be valid, nevertheless the recited facts do not bring him within the terms of section 5054 for the reason that when he was received at and entered the penitentiary upon his third conviction he was not "then serving" the third sentence but took up service of the unexpired portion of the second sentence.
The indictment under which accused was convicted and sentenced on November 18, 1943, charged him with the felonious breaking and entry of several different buildings, namely, the "office, shop, storehouse, warehouse, and other house * * * " of Maurice L. Block with intent to steal and the theft therefrom of certain articles. The verdict was as follows:
The verdict being general in terms, it is conceded that it is a conviction for housebreaking with intent to commit larceny, yet accused says that the judgment carrying the verdict into effect is void because the verdict did not specify or designate the specific building that he broke and entered.
The verdict is responsive to the charge in the indictment, which is in the language of the pertinent statutes, viz., sections 4438 and 4439 of the Code 1942 Michie.
The trivial omission or irregularity, if it measures up to such, in this verdict and judgment pronounced by a court of competent jurisdiction of the person and subject matter involved could only be questioned by writ of error. Commonwealth v. Beavers, 150 Va. 33, 142 S.E. 402.
Accused also asserts that the sentence and judgment of July 15, 1947, is void. The indictment upon which this conviction was had charged in one count the unlawful and felonious breaking and entry of certain houses with intent to commit larceny therein and the actual larceny of enumerated articles. Trial by jury was waived and all matters of law and fact submitted to the court upon a plea of guilty. The judgment reads, in part, that "the court doth find the said Gilford Wesley guilty of housebreaking with intent to commit larceny and grand larceny * * *." Upon the authority of Clarke v. Commonwealth, 135 Va. 490, 115 S.E. 704, accused asserts that the judgment constitutes a conviction and sentence for two distinct crimes, i. e., (1) housebreaking, and (2) larceny--and is therefore void.
In Clark's case, supra, 135 Va. at page 496, 115 S.E. at page 706, we find: "It would appear from these authorities that where the accused is charged with breaking and entering with intent to commit larceny, and the commission of the larceny, he might be convicted of either offense but not of both."
That statement was made by the court with reference to an indictment which charged in one count the two crimes of (a) breaking and entry, and (b) larceny. We agree that under such an indictment the conclusion voiced is correct
However, in the case at bar the court in which the conviction and sentence was rendered had jurisdiction of the accused and of the subject matter, and the punishment imposed was prescribed by law for either of the offenses mentioned in the indictment and judgment. This mere error or irregularity does not render the judgment void, and could only have been taken advantage of by writ of error. It may not be relied upon in this a collateral proceeding. Harmon v. Smyth, 183 Va. 414, 32 S.E.2d 665; Hobson v. Youell, 177 Va. 906, 15 S.E.2d 76; Commonwealth v. Beavers, supra; Anderson v. McClintic, 115 W.Va. 329, 175 S.E. 857; 24 C.J.S., Criminal Law, § 1961, page 1156; 15 Am. Jur., Criminal Law, sec. 504, p. 154, and 25 Am.Jur., Habitual Criminals, sec. 14, p. 266.
Upon conviction and sentence of accused on July 15, 1947, for his third offense, immediately upon his entry into the penitentiary he started serving the balance of his unexpired second term. That this is true has been made certain by the decision of Hudson v. Youell, 179 Va. 442, at page 451, 19 S.E.2d 705, 709, where it is said: "The general rule in Virginia, both before we had a statute on the subject and since, is that sentences run consecutively and not concurrently."
Not having ordered concurrent service of the third term with the unexpired portion of the second term as might have been done by the court under sec. 4786 of the Code, it logically follows that the entire term previously imposed must be wholly served before accused begins service of the later third term. The mere escape of the accused could not break this sequence of service of successive terms. See McDorman v. Smyth, 187 Va. 522, 47 S.E.2d 441, and McDorman v. Smyth, 188 Va. 474, 50 S.E.2d 423.
However, it is equally true that when convicted for the third offense, the entry of accused into the penitentiary wasthrough and as a result of that judgment and sentence.
The status of accused relative to his re-entry into the penitentiary and service of his sentences being established, the question presented is can he be punished as a third offender.
Section 5054 first appeared in the Revised Code of 1919. It is a consolidation and outgrowth of sections 3905 and 3906 of the Code of 1887, Acts 1916, pp. 34, 35, and section 4180 and other cognate sections of that Code, all of which dealt with the punishment of habitual criminals. The three sections mentioned, i. e., sec. 3905, 3906, and 4180, read as follows: ...
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