Browning, President:
Petitioner, a prisoner in the West Virginia State Penitentiary, invoked the original jurisdiction of this Court by filing herein his petition asking for a writ of habeas corpus ad subjiciendum. The petitioner alleged that his “imprisonment, detention, confinement and restraint in the Penitentiary of the State of West Virginia is illegal, unreasonable, unconstitutional and void; * * On July 5, 1960, the writ was granted, returnable July 12, 1960. Counsel was appointed for the petitioner and on the return day the Attorney General, appearing for the respondent, produced the body of the petitioner, demurred to the petition and upon briefs and oral arguments by counsel the case was submitted for decision.
An exhibit filed with the petition is a certified copy of the indictment to which petitioner entered a plea of guilty and was sentenced to confinement in the penitentiary for a period of ten years. The indictment, insofar as pertinent, is in this language: ‘ ‘ The Grand Jurors of the State of West Virginia, in and for the body of the County of Berkeley, and now attending said Court, upon their oaths present that Melvin Gerst, John Soto and Robert Vandal, on the _ day of November, 1959, in the County and State aforesaid, in and upon one Kenneth W. Green, with certain dangerous weapons called a knife and pistol, said pistol then and there being loaded with gunpowder and leaden bullets, with which the said Melvin Gerst, John Soto and Robert Vandal were then and there armed, and also [568]*568with other actual violence, did make an assault, with intent good and lawful currency of the United States of America of the money, goods and chattels of him the said Kenneth W. Green from the person and against the will of him the said Kenneth W. Green by force and violence, and by assaulting and putting him in bodily fear and danger of his life, to steal take and rob, against the peace and dignity of the State.”
The sole question raised by the pleadings in this case is whether the judgment order, commitment and subsequent confinement of the petitioner in the penitentiary nnder this sentence are illegal since the indictment to which he pleaded guilty did not contain the word “feloniously”.
Code, 61-11-1, as amended, reads in part: “Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.” Code, 61-2-12, as amended, entitled: Robbery or Attempted Robbery; Penalties; Bank Robbery and Assaults in Committing or Attempting; Penalties., reads: “If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this section, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five years.” (Italics Supplied.) The other paragraph of the section relates to the forcible taking of money or property from a bank, the penalty for which is not less than ten years nor more than twenty years confinement in the penitentiary, or if an assault occurs, or the life of any person is put in jeopardy by the use of a dangerous weapon, the penalty is not less than ten nor more than [569]*569twenty-five years. If “robbery” is committed in tbe manner described in tbe first sentence of tbe first paragraph, it becomes wbat is commonly called ‘ ‘ armed robbery”, tbongb tbat term may not be entirely accurate, and if “robbery” is committed in tbe manner provided in tbe second sentence of tbe first paragraph, it becomes wbat is usually referred to as “unarmed robbery”. We are not here concerned with tbe provision of tbe section relating to “bank robbery”. A revisers’ note states tbat tbe section “is amended to define robbery. ’ ’ This section, prior to tbe revision and adoption of the present official Code in 1931, provided simply tbat: “If any person commit robbery, being armed with a dangerous weapon, be shall be confined in tbe penitentiary not less than ten years; if not so armed, be shall be confined therein not less than five years.” In interpreting this section, prior to tbe revision, this Court held tbat it did not define robbery, but merely prescribed tbe punishment. Franklin and Ponto v. Brown, Warden, etc., 73 W. Va. 727, 81 S. E. 405; State v. McCoy, 63 W. Va. 69, 59 S. E. 758.
Without reference to tbe revisers’ note, this Court said in State v. Young, 134 W. Va. 771, 61 S. E. 2d. 734, decided in 1950, tbat: “We think we are correct in saying tbat there is no statutory definition of tbe crime of robbery, although in some of its aspects it is referred to in Code, 61-2-12. At common law, robbery was defined as ‘ Tbe felonious taking of money or goods of value from tbe person of another or in bis presence, against bis will, by force or putting him in fear’. * * *.”
In State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 76 S. E. 2d. 283, a prisoner sought release from tbe State Penitentiary on writ of habeas corpus ad sub-jiciendum upon the ground tbat tbe indictment under which be was convicted did not charge a crime under tbe provisions of Code, 61-2-12, as amended, but rather an attempt to commit a felony other than armed robbery under tbe provisions of Code, 61-11-8, which carries a less severe penalty. Tbe indictment there considered followed tbe statutory form and tbe Court in [570]*570holding that the allegations therein charged the petitioner with a felony under the provisions of Code, 61-2-12, as amended, said: “We think, however, that if the indictment effectively charged a crime, it was that described in the first sentence of the statute. We say this, because the indictment charges the petitioner ‘in and upon one Lillian Pearl Hudkins and assault did feloniously make and her, the said Lillian Pearl Hud-kins, did then and there feloniously put in bodily fear, * * V So the indictment charges that the petitioner made a felonious assault in an attempt to steal, take and carry away property in the custody of the person assaulted. Thus, the indictment, in our opinion, satisfies the wording of the first sentence of the statute, # * # m (Italics supplied.)
In Barker v. Commonwealth, 2 Va. Cas. 122, decided in 1817, the defendant was convicted upon an indictment charging him with larceny of certain bank notes, and his motion in arrest of judgment upon the ground that the indictment did not contain the word “feloniously” was overruled, but the appellate court reversed the trial court and in its opinion said: “It seems, therefore, to be too late, even if there was some ground for doubt, to unsettle this question, and thereby set aside a practical construction of these Laws of so long standing, and disturb all the Cases which have been decided under it. A majority of the Court are, upon the whole, of opinion, that it is error in not alleging that the taking of bank notes in the Indictment mentioned, was done feloniously.” To the same effect is the case of Randall v. Commonwealth, 24 Gratt. 644, decided in 1874.
In State v. Whitt, 39 W. Va. 468, 19 S. E. 873, decided in 1894, the defendant was convicted of the malicious killing of an animal belonging to another.
Free access — add to your briefcase to read the full text and ask questions with AI
Browning, President:
Petitioner, a prisoner in the West Virginia State Penitentiary, invoked the original jurisdiction of this Court by filing herein his petition asking for a writ of habeas corpus ad subjiciendum. The petitioner alleged that his “imprisonment, detention, confinement and restraint in the Penitentiary of the State of West Virginia is illegal, unreasonable, unconstitutional and void; * * On July 5, 1960, the writ was granted, returnable July 12, 1960. Counsel was appointed for the petitioner and on the return day the Attorney General, appearing for the respondent, produced the body of the petitioner, demurred to the petition and upon briefs and oral arguments by counsel the case was submitted for decision.
An exhibit filed with the petition is a certified copy of the indictment to which petitioner entered a plea of guilty and was sentenced to confinement in the penitentiary for a period of ten years. The indictment, insofar as pertinent, is in this language: ‘ ‘ The Grand Jurors of the State of West Virginia, in and for the body of the County of Berkeley, and now attending said Court, upon their oaths present that Melvin Gerst, John Soto and Robert Vandal, on the _ day of November, 1959, in the County and State aforesaid, in and upon one Kenneth W. Green, with certain dangerous weapons called a knife and pistol, said pistol then and there being loaded with gunpowder and leaden bullets, with which the said Melvin Gerst, John Soto and Robert Vandal were then and there armed, and also [568]*568with other actual violence, did make an assault, with intent good and lawful currency of the United States of America of the money, goods and chattels of him the said Kenneth W. Green from the person and against the will of him the said Kenneth W. Green by force and violence, and by assaulting and putting him in bodily fear and danger of his life, to steal take and rob, against the peace and dignity of the State.”
The sole question raised by the pleadings in this case is whether the judgment order, commitment and subsequent confinement of the petitioner in the penitentiary nnder this sentence are illegal since the indictment to which he pleaded guilty did not contain the word “feloniously”.
Code, 61-11-1, as amended, reads in part: “Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.” Code, 61-2-12, as amended, entitled: Robbery or Attempted Robbery; Penalties; Bank Robbery and Assaults in Committing or Attempting; Penalties., reads: “If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this section, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five years.” (Italics Supplied.) The other paragraph of the section relates to the forcible taking of money or property from a bank, the penalty for which is not less than ten years nor more than twenty years confinement in the penitentiary, or if an assault occurs, or the life of any person is put in jeopardy by the use of a dangerous weapon, the penalty is not less than ten nor more than [569]*569twenty-five years. If “robbery” is committed in tbe manner described in tbe first sentence of tbe first paragraph, it becomes wbat is commonly called ‘ ‘ armed robbery”, tbongb tbat term may not be entirely accurate, and if “robbery” is committed in tbe manner provided in tbe second sentence of tbe first paragraph, it becomes wbat is usually referred to as “unarmed robbery”. We are not here concerned with tbe provision of tbe section relating to “bank robbery”. A revisers’ note states tbat tbe section “is amended to define robbery. ’ ’ This section, prior to tbe revision and adoption of the present official Code in 1931, provided simply tbat: “If any person commit robbery, being armed with a dangerous weapon, be shall be confined in tbe penitentiary not less than ten years; if not so armed, be shall be confined therein not less than five years.” In interpreting this section, prior to tbe revision, this Court held tbat it did not define robbery, but merely prescribed tbe punishment. Franklin and Ponto v. Brown, Warden, etc., 73 W. Va. 727, 81 S. E. 405; State v. McCoy, 63 W. Va. 69, 59 S. E. 758.
Without reference to tbe revisers’ note, this Court said in State v. Young, 134 W. Va. 771, 61 S. E. 2d. 734, decided in 1950, tbat: “We think we are correct in saying tbat there is no statutory definition of tbe crime of robbery, although in some of its aspects it is referred to in Code, 61-2-12. At common law, robbery was defined as ‘ Tbe felonious taking of money or goods of value from tbe person of another or in bis presence, against bis will, by force or putting him in fear’. * * *.”
In State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 76 S. E. 2d. 283, a prisoner sought release from tbe State Penitentiary on writ of habeas corpus ad sub-jiciendum upon the ground tbat tbe indictment under which be was convicted did not charge a crime under tbe provisions of Code, 61-2-12, as amended, but rather an attempt to commit a felony other than armed robbery under tbe provisions of Code, 61-11-8, which carries a less severe penalty. Tbe indictment there considered followed tbe statutory form and tbe Court in [570]*570holding that the allegations therein charged the petitioner with a felony under the provisions of Code, 61-2-12, as amended, said: “We think, however, that if the indictment effectively charged a crime, it was that described in the first sentence of the statute. We say this, because the indictment charges the petitioner ‘in and upon one Lillian Pearl Hudkins and assault did feloniously make and her, the said Lillian Pearl Hud-kins, did then and there feloniously put in bodily fear, * * V So the indictment charges that the petitioner made a felonious assault in an attempt to steal, take and carry away property in the custody of the person assaulted. Thus, the indictment, in our opinion, satisfies the wording of the first sentence of the statute, # * # m (Italics supplied.)
In Barker v. Commonwealth, 2 Va. Cas. 122, decided in 1817, the defendant was convicted upon an indictment charging him with larceny of certain bank notes, and his motion in arrest of judgment upon the ground that the indictment did not contain the word “feloniously” was overruled, but the appellate court reversed the trial court and in its opinion said: “It seems, therefore, to be too late, even if there was some ground for doubt, to unsettle this question, and thereby set aside a practical construction of these Laws of so long standing, and disturb all the Cases which have been decided under it. A majority of the Court are, upon the whole, of opinion, that it is error in not alleging that the taking of bank notes in the Indictment mentioned, was done feloniously.” To the same effect is the case of Randall v. Commonwealth, 24 Gratt. 644, decided in 1874.
In State v. Whitt, 39 W. Va. 468, 19 S. E. 873, decided in 1894, the defendant was convicted of the malicious killing of an animal belonging to another. The judgment was reversed, the verdict of the jury was set aside upon writ of error, and in the opinion Judge Dent said: * * Does the indictment charge a felony? The offense is not alleged as ‘feloniously’ committed; hence under the settled law of this state the indictment does [571]*571not charge a felony, but is manifestly bad for that purpose.” In tbe recent case of State v. Smith, 130 W. Va. 183, 43 S. E. 2d. 802, tbe 1st Syllabus Point succinctly states: “In a felony indictment it is necessary to charge that tbe acts alleged to have been done by tbe accused were done ‘feloniously.’ ” State v. Vest, 21 W. Va. 796; State v. McClung, 35 W. Va. 280, 13 S. E. 654.
Tbe Virginia Court in Jolly v. Commonwealth, 136 Va. 756, 118 S. E. 109, held that an indictment charging a statutory crime, which is punishable with confinement in the penitentiary, need not charge that the acts were feloniously done where the statute defining the crime does not use that word or the word felony as a part of the definition. In the opinion, the court said: “* * * The offenses charged in the third and fourth counts of the indictment are statutory, and neither the word ‘felony’ nor the word ‘feloniously’ is used in the definition.* * *.” In support of this rule, reference was made to Section 4877 of the Code of Virginia which provides that it is the judicial and legal policy of that state to have both civil and criminal cases “tried on their merits and as far as possible to ignore mere formal defects.” Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494, and other authorities were cited in support of this decision. In the opinion, the court said: “* * * In so far as Randall v. Commonwealth, supra, and other like Virginia decisions are in conflict with this conclusion, they will not be hereafter followed.” The court also stated it was the rule in “many other states” that the word “feloniously” was essential to the validity of an indictment charging a common law or statutory felony.
Code, 61-2-12, as amended, uses the word “felony” twice in the first paragraph and the word “feloni-ously” twice in the first two lines of the second paragraph. Code, 62-9-6, as amended, entitled: Indictment for Robbery, insofar as pertinent, provides: “An indictment for robbery shall be sufficient if it be in form, [572]*572tenor or effect as follows * * * That A * * * being armed * * * in and npon one B.an assanlt did feloniously make, and him, the said B.did then and there feloniously put in bodily fear, and * * * then and there feloniously and violently did steal, take and carry away, * * (Italics supplied.) It will he noted that in this statutory form of indictment for robbery the word “feloniously” is used three times. Code, 62-2-11, is the criminal statute of jeofails of this State. This Court, in interpreting this section, in State v. Davis, 87 W. Va. 184, 104 S. E. 484, said: "* * * its only purpose is to cure defects due to the technical and unwarranted judicial distinctions introduced into the common law without jeopardizing the rights of the state or the accused. The omission of the word ‘felonious,’ used to describe the larcenous intent to steal bank notes, is not within the curative provisions of the statute, * * *.”
The indictment upon which this petitioner was convicted and sentenced to the penitentiary for a term of ten years did not charge him with the commission of a felony. Under the provisions of Code, 61-11-1, as amended, all offenses which are not felonies are misdemeanors. A person convicted of a misdemeanor may be punished only by fine and imprisonment in jail not to exceed one year. Therefore, the sentence, judgment and commitment by which this petitioner is confined in the penitentiary for a term of ten years are void. That being so, he is illegally restrained of his liberty without authority of law and habeas corpus is the proper remedy by which he may secure his freedom from such illegal restraint. Upon the writ heretofore awarded, the respondent will be directed to discharge the prisoner forthwith from his custody as warden of the penitentiary. Perhaps this opinion could have been written better in three sentences: No person can be held in the penitentiary of this State against his will who has not been charged in the manner provided by law with a felony. This man is so held and wants out. The warden will be directed to turn him loose.
Prisoner discharged.