Hudson v. Youell

19 S.E.2d 705, 179 Va. 442, 1942 Va. LEXIS 237

• Court: Supreme Court of Virginia
• Decided: April 13, 1942
• Docket: Record No. 2494
• Status: Published

Opinions

Gregory, J.,

delivered the opinion of the court.

This case was argued and submitted to this court at the October, 194 x, session in Richmond, and the opinion of the majority, prepared and handed down by Mr. Justice Hudgins at the November, 1941, session of the court. (See 178 Va. 525, 17 S. E. (2d) 403). Thereafter, the Commonwealth filed its petition for a rehearing, and after mature consideration the prayer of the petition was granted, and the case was reheard at the February, 1942, session of the court in Richmond.

The record and petition bring under review the judgment of the trial court upon a writ of habeas corpus, denying petitioner a discharge from custody.

On January 25, 1934, William P. Hudson, petitioner, was led before the bar of the Hustings Court of the City of Richmond and arraigned upon five separate indictments—one for “attempt” murder and four for burglarizing four separate dwellings. The sentence of the court was in the following language:

“The said defendant was this day led to the bar in the custody of the Sergeant of this City, and being arraigned upon each indictment, pleaded guilty of attempt murder as charged in the first case, and pleaded guilty of burglary in each of the other four cases against him. And the Court having heard the evidence in each case, doth ascertain the term of confinement of the said defendant in the Penitentiary at one year in the first case and at five years in each of the other four cases, making twenty-one years in all.

“Whereupon it being demanded of the said William P. Hudson if anything for himself he had or knew to say why the Court should not now proceed to pronounce judgment against him according to law, and nothing being offered or alleged in delay thereof, it is considered by the Court that the said William P. Hudson be confined in the Penitentiary for one term of one year and four terms of five years each, said terms to run consecutively, making a total of twenty-one years, these being the periods by the court ascertained. It is further ordered that the above terms are to run consecutively with any other terms to which the said defendant may heretofore have been sentenced in this or any other Court in this Commonwealth. Said terms to be credited by time spent in jail awaiting trial. And it is ordered that the Sergeant of this City do, when required so to do, deliver the said defendant from the jail of this City to the Superintendent of the Penitentiary, in said Penitentiary to be confined and treated in the manner prescribed by law.

“And thereupon the said William P. Hudson is remanded to jail.”

No objection was made by Hudson at this time or at any other time to the sentence or the order carrying it into effect. No motion was made to have the sentence state the order of sequence of the terms of confinement.

On the 10th day of April, 1941, more than seven years later, William P. Hudson filed a petition for a writ of habeas corpus in the Hustings court of the city of Richmond, alleging that he was then being illegally detained; that the order of the court sentencing him to consecutive terms in the penitentiary was too vague for application since no order of sequence was therein set out, and that accordingly the five terms of sentence began running simultaneously. Five years being the longest single term of confinement specified in the sentence, that period was all he claimed to be obligated to serve. Since he had already served five years in the penitentiary, it was his contention that he was being illegally held. The trial court dismissed this writ and remanded petitioner to the penitentiary. From this judgment the petitioner has obtained a writ of error.

The petitioner grounds his contention upon the authority of United States v. Patterson, 29 F. 775. In that case the petitioner had entered pleas of guilty to three indictments and had been sentenced as follows: “The court do order and adjudge that the prisoner, Oscar L. Baldwin, be confined at hard labor in the state’s prison of the state of New Jersey, for the terms of five (5) years, upon each of the three indictments above named, said terms not to run concurrently * * #.” Mr. Justice Bradley, who wrote the opinion, said there was no way to arrive at any order of succession of the terms of imprisonment imposed. No order of sequence being designated, the prisoner could not know at any particular time under what sentence he was serving. Hence, it was held that the sentences were incapable of being applied consecutively, and therefore must be considered as running concurrently. The judgment for the term beyond the five years was treated as void, and petitioner was granted the writ of habeas corpus. William P. Hudson relies strongly upon the reasoning in the opinion of that case as ground for the granting of his own freedom. He attempts, however, to stretch the authority of that opinion beyond its true significance by saying that a federal question is herein involved. With that contention we do not agree. No reference whatever was made in the cited opinion to constitutional guaranties of due process. Mr. Justice Bradley pointed out that the vague words involved in the sentence were insufficient to alter the legal rule that each sentence is to commence at once, unless otherwise specifically ordered. The actual decision in the Patterson case was simply that the trial court had not effectively provided for the accumulation of multiple sentences as required by the prevailing federal practice.

The question presented to us for determination is whether under the laws of Virginia the judgment imposing a sentence of twenty-one years was a valid one.

The authority of the highly technical rule enunciated in United States v. Patterson, supra, has been subsequently undermined in the federal courts themselves.

In United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed. 309, the accused was sentenced, on a plea of guilty to three counts under an indictment, to a term of five years on each of the counts, the term of imprisonment to run consecutively and not concurrently. It was urged by the defendant that the sentence was only for five years, on the theory that sentences so imposed run concurrently in the absence of a specific and definite provision therein that they be made to run consecutively by specifying the order of sequence. Mr. Justice McReynolds, however, rejected this argument, and distinguished the case of United States v. Patterson, supra, which grew out of a sentence under pleas of guilty to three separate indictments, and the case at bar which concerned counts in one indictment. In determining that the sentence imposed a fifteen year period of imprisonment the court said this, at p. 363:

“Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded. Tested by this standard the judgment here questioned was sufficient to impose total imprisonment for fifteen years * * The court then stated that the three terms followed each other in the same sequence as the counts appeared in the indictment. This inferred sequence, quite artificial and accidental, gave the court sufficient excuse to reject the full import of the rule laid down in United States v. Patterson, supra.

In Boyd v. Archer, 42 F. (2d) 43, 70 A. L. R. 1507, the petitioner was sentenced in two separate cases, the second sentence providing that it was to run consecutively with and in addition to the sentence which had been theretofore imposed in a former case. Although these two sentences.were imposed on two indictments in the same court, it was held that the sentences were to run consecutively, the court explaining that the sequence should follow the order in which the judgments were entered. The fact that the sentences were in two separate causes and not on separate counts of the same indictment was held in the instant case not to be controlling, and United States v. Daugherty, supra, was held to govern, as against the contention that the judgment did not direct the order in which the two sentences should be served, but merely provided that they run consecutively.

Thus the strict necessity for specifying a sequence to sentences in the federal courts was relaxed, first by distinguishing counts under one indictment from several indictments, and then- subsequently obliterating this distinction, the court still paying lip service to the requirement for sequence by inferring such sequence from any accidental or artificial means available.

Not only has this highly technical rule been nicely distinguished, but its basic principles have been repudiated by the adoption by the federal courts of the principle of lumping sentences.

In Myers v. Morgan, 224 F. 413, petitioner had been found guilty in the district court by a jury on both counts of an indictment for violation of the Mann Act. The sentence of the court in that case was:

“That for his offense the said defendant be imprisoned in the penitentiary * * * for the period of ten years * * The maximum punishment provided in the act for one offense was five years confinement. The Circuit Court of Appeals, (8th circuit), in refusing to grant the petition for habeas corpus said at p. 415:

“That the court may impose one sentence on a conviction for two or more offenses, provided the sentence is not in excess of the maximum allowed by law for all the offenses of which the defendant has been found guilty, has been determined in Re Henry, 123 U. S. 372, 8 Sup. Ct. 142, 31 L. Ed. 174, In re De Bara, 179 U. S. 316, 321, 21 Sup. Ct. 110, 45 L. Ed. 207, Hyde v. United States, 198 Fed. 610, 119 C. C. A. 493, decided by this court, and Howard v. Moyer (D. C.) 206 Fed. 555.”

And in Brinkman v. Morgan, 253 F. 553, petitioner was indicted in eight counts, pleaded guilty and was sentenced to imprisonment for ten years. Under each count he would have been sentenced to five years imprisonment. The court denied the discharge of the petitioner, saying that there was no sound legal objection to a single sentence for several offenses charged in one indictment, if it did not exceed the statutory maximum for all. To the same effect, see Neely v. United States, 2 F. (2d) 849.

Clearly, where several sentences are lumped into one single term, there is no attempt to specify any sequence, and it would be unreasonable to infer that a court had thereby even considered doing so.

For the single reason that the federal rule enunciated by the court fifty-four years ago in United States v. Patterson, supra, has since lost favor within its own jurisdictional orbit, we should be very reluctant now to adopt it in our Commonwealth. Moreover, established principles of law and judicial practice in Virginia support a rejection of this technicality.

Code, section 4786 (Michie), as it was in January, 1934, when the petitioner was sentenced, read as follows:

“When any person is convicted of two or more offenses, before sentence is pronounced for either, the confinement to which he may be sentenced upon the second, or any subsequent conviction, shall commence at the termination of the previous term or terms of confinement.”

Thus it is clear that this section, directly controlling upon the petitioner when he was sentenced' in 1934, would have been self-executing in imposing consecutive terms of punishment upon him, even had the court failed to declare the terms of imprisonment consecutive.

Code, section 5019 (Michie), .stating that confinement shall commence from the date of the final judgment, must be read in conjunction with section 4786, and being general in its terms must give way to section 4786 whenever they conflict, the latter being specific in its terms.

The intent of the court was, however, unequivocally expressed that the terms should run consecutively. This, even in the absence of a pertinent statutory provision, should have been sufficiently clear and certain for execution.

In Wilborn v. Saunders, 170 Va. 153, 195 S. E. 723, Mr. Justice Hudgins quoted the following approvingly at p. 160:

“ ‘The law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending of the period during which the imprisonment shall be suffered. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, would, as a rule, be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence.’ State v. Horne, supra.”

The effect of the court’s judgment in the case at bar was to lump the sentences together to make a sentence of twenty-one years. In Parsons v. Commonwealth, 154 Va. 832, 152 S. E. 547, the lower court added the fines together, as it did the "periods of confinement, when the jury had found the defendant guilty on two counts, sentencing the defendant to one term of nine months in jail. Under such a sentence there was no attempt to indicate any order of sequence of the two sentences. Mr. Justice Holt, in referring to this at p. 853 said: “He (defendant) did not suffer because the verdict was thus dealt with.” In the instant case, the defendant cannot show where he is, in fact, prejudiced by the order committing him. In fact, he could have been given the supreme penalty on any one of the indictments for burglary.

The general rule in Virginia, both before we had a statute on the subject and since, is that sentences run consecutively and not concurrently. The first statute appears in the Acts of 1877-78, p. 315. In fact it is not disclosed from the statute prior to 1934 that a court had statutory power to order the sentences to run concurrently. Tins statutory power to make sentences run concurrently appeared in the statute for the,first time in the amendment of 1934 (Acts 1934, p. 175). See Commonwealth v. Leath, 1 Va. Cas. (3 Va.) 151, where the rule was applied before any statute had been enacted on the subject, and Parsons v. Commonwealth, 154 Va. 832, 152 S. E. 547, where the rule was applied after the statute had been enacted. Under the amendment of 1934 the Court is given express power to order sentences to run concurrently, but in the absence of express direction, they still run consecutively. See Code, section 4786 (Michie 1936).

In Commonwealth v. Leath, supra, the prisoners were indicted and convicted of several felonies. The jury ascertained their term of imprisonment in each case. When they were brought to the bar of the court to receive their sentence, they moved in arrest of judgment, “because the defendants # # have already been found guilty of stabbing, and have been sentenced * * * in the penitentiary house, and because no law of the land allows a man convicted, to be sentenced to .undergo punishment at a far distant day, after he shall have undergone punishment in the meantime, for an offense of the like, or of a different kind.” When this motion was made the district court being doubtful of its action “adjourned the question to the general court for their decision.” The general court held that the defendants “may be adjudged to undergo a confinement in the jail * * * upon the five convictions * * * although they have already been adjudged to undergo such imprisonment upon the first conviction * * * and each imprisonment ought to commence from and after the expiration of the imprisonment * # * which may have been adjudged against them before the rendition of such judgments respectively.”

The clear effect of that case is that an accused who has been convicted of several felonies may be adjudged to undergo several imprisonments therefor, to commence respectively, from and after the expiration of prior imprisonments adjudged against him. In other words, the sentences of imprisonment must run consecutively and not concurrently.

It is quite interesting to note that in the Leath case the defendants did not wait many years before raising the point but did so before sentence was passed upon them.

Code, section 4786, neither prior to the amendment of 1934 nor since, does not require the court to state sequence in its orders sentencing a defendant to imprisonment upon two or more convictions. The statute is süent on this subject. On the other hand, the legislative intent seems manifest that the statute was intended to be self-executing. But even if the convict must know what sentence he is serving at any particular time, then the clerk of the penitentiary, who under Code, section 4997, is charged with the duty of keeping a register showing the term of confinement and the offense of each convict, could, in the performance of his ministerial duties, inform the convict of his term of confinement and of the offense for which he may be serving his imprisonment.

In the case at bar the express intent of the court in its sentence was the petitioner should undergo twenty-one years of servitude on the five indictments and that the sentences should run consecutively and not concurrently.. If the petitioner deemed an order of sequence necessary he should have requested it at the time of his trial and sentence as was done in Commonwealth v. Leath, supra. If this request had been refused, a writ of error to this court would have been in order. The petitioner will not be allowed to acquiesce in the error of the court, if it were error, for seven years and then free himself from the balance of his sentence on a mere irregularity by invoking such a technical and unwarranted rule which has never prevailed in Virginia. A writ of habeas corpus is never substituted for a writ of error. Cornella v. Haskell, 158 F. 285; 25 Am. Jur. Habeas Corpus 184; 76 A. L. R. 468. See also 28 Va. Law Rev. 568.

To adopt the contention of petitioner would in effect ignore not only the mandate of our legislature but also that of the court which pronounced sentence in a case over which it had jurisdiction. It would loose upon society a hardened criminal of the most vicious type. The petitioner had previously been sentenced to thirty years in the penitentiary. After serving approximately four-fifths of this term he was conditionally pardoned by the governor in 1933. Less than a year after his release he perpetrated four distinct acts of burglary and one of attempted murder. Not only would the petitioner be released, but the floodgates of the penitentiary would be opened for the worst kind of criminals—those sentenced for several crimes. The Superintendent of the State penitentiary made an affidavit to the effect that during the year of 1941, judgments certified'with respect to forty-seven prisoners afforded no indication whatever as to sequence, and no guide of any description by which such sequence could be assigned. This affidavit has the effect of demonstrating not only the well established judicial practice in Virginia of not specifying any order of sequence, but also how shocking would be the result of following petitioner’s contention whereby large numbers of the most vicious criminals would be given their freedom after serving only a fraction of their sentences which had been solemnly adjudged by courts of justice.

As a practical matter, petitioner is not prejudiced by the sentence complained of. It makes no practical difference in what order he is serving his several terms. He stands little chance of obtaining further executive clemency, since he has breached so flagrantly his prior conditional pardon; there is no possibility that any after-discovered evidence may be produced, since he was sentenced on pleas of guilty. However, if the improbable were to occur, and for some reason petitioner’s term were to be shortened, this could readily be done simply by deducting from the term of twenty-one years the period of time the governor might chance to give him by way of a pardon.

The record of petitioner itself negatives the contention that the alleged indefinite sentence thwarts his chances to secure a governor’s pardon because the governor would desire to know for what terms he was being pardoned. His prior pardon was merely for approximately the last six years of a thirty year sentence made up of two terms which were cumulative. No attempt was made to specify for which term the pardon operated. (Indeed, it appears that this prior sentence for which he was pardoned failed to indicate any order of sequence.) The pardon was simply operative on the total thirty year term.

We find, accordingly, that the sentence complained of was a valid one for twenty-one years. The judgment of the lower court in dismissing the petition for a writ of habeas corpus is affirmed.

Affirmed.