The contention that the indictment charges more than one crime is settled adversely to the defendant by our decisions and does not call for discussion. Little v. Gladden, 202 Or. 16, 19, 273 P.2d 443; Castle v. Gladden, 201 Or. 353, 360, 270 P.2d 675; State v. Smith, 128 Or. 515, 524, 273 P.2d 323. The question most debated, as to the propriety of including allegations of prior convictions in the indictment, where such convictions are material to the penalty, has also been decided by this court.
LUSK, J. This is an appeal from a sentence of life imprisonment under the Habitual Criminal Act (OCLA §§ 26-2801 et seq.) imposed by the circuit court in accordance with the opinion of this court in Little v. Gladden, 202 Or. 16, 273 P.2d 443. By his first assignment of error the defendant contends that the court was without jurisdiction to impose the sentence because "appellant was never at any time, either in the case wherein sentence was imposed, or in any other case or proceeding authorized by law, charged with having, or found to have, three previous convictions of felonies."
On August 2, 1954, that tribunal granted the writ, holding that the life sentence was void for having been imposed as punishment for a non-existent crime. Little v. Gladden, 202 Or. 16, 273 P.2d 443 (1954). Issuance of the writ was stayed, however, to afford Oregon authorities the opportunity to seek imposition of a proper sentence which would technically comport with Oregon law.
"Also, it is a general rule that if the judgment of the trial court illegal and void, the trial court has not exhausted its jurisdiction since it has in fact failed to pronounce any sentence. When this occurs, the trial court may `then substitute a valid sentence for the one that is void.' Gladden v. Kelly, 213 Or. 197, 200, 324 P.2d 486; Little v. Gladden, 202 Or. 16, 273 P.2d 443." (Emphasis ours.)
The State contends that the language used does not limit the time within which the procedure prescribed thereby shall be followed. See People ex rel. Fernandez v. Kaiser, 230 App. Div. 646, 246 N.Y.S. 309, aff. 256 N Y 581, 177 N.E. 149, cert. den. 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537; State v. George, 218 La. 18, 48 So.2d 265; State v. Sudekatus, 72 Ohio App. 165, 51 N.E.2d 22; Little v. Gladden, 202 Or. 16, 273 P.2d 443. In a word it is asserted that the statutory language means that the state is never precluded from proceeding against a second offender, even after he has completed his last sentence and has been at liberty for many years.
When this occurs, the trial court may "then substitute a valid sentence for the one that is void." Gladden v. Kelly, 213 Or. 197, 200, 324 P.2d 486; Little v. Gladden, 202 Or. 16, 273 P.2d 443. ORS 137.320 provides that "[w]hen the judgment is imprisonment in the penitentiary or the Oregon State Correctional Institution, the sheriff shall deliver the defendant * * *" to that institution.
New York was followed in Ohio, Louisiana, Washington, and Oregon, whose statutes are patterned after the New York law. State v. Sudekatus, 72 Ohio App. 165, 51 N.E.2d 22; In re Sims, Ohio App., 104 N.E.2d 193; State v. George, 218 La. 18, 48 So.2d 265; Ex Parte Towne, 14 Wn.2d 633, 129 P.2d 230; Little v. Gladden, 202 Or. 16, 273 P.2d 443. Attention is called to the fact that these courts placed special emphasis upon language of their statutes identical with the italicized language of our habitual criminal law.
'In other words, it is not a crime to be an habitual criminal, it is, rather, a status' which makes one convicted of more than one felony liable to a heavier penalty." Citing Little v. Gladden, 202 Or. 16, 273 P.2d 443, 444. The sufficiency of the information is governed solely by the language of Sec. 53-296, and so much of the section that is pertinent here reads as follows:
The original sentence was void and it was the duty of the trial court when the error was called to its attention, or on its own motion, to impose a valid sentence. State v. Froembling, supra; State ex rel Gladden v. Kelly, 213 Or. 197, 200, 324 P.2d 486 (1958); Landreth v. Gladden, 213 Or. 205, 324 P.2d 475 (1958); Gordon Sayre Little v. Gladden, 202 Or. 16, 273 P.2d 443 (1954); State v. Boles, supra; Mathes v. United States, supra; Bozza v. United States, supra; In re Bonner, Petitioner, supra. The judgment of the trial court is affirmed.
(Italics supplied.) Little v. Gladden, 202 Or. 16, 273 P.2d 443, 444. See also Peer v. Skeen, 108 F. Supp. 921, 922.