dissenting;
I am unable to agree with the conclusion reached in the majority opinion—a result which is incompatible with my sense of justice.
Here we are dealing with an habitual criminal of the most vicious type; not even a scintilla of reasonable hope exists that he will reform and become a rehabilitated, law-abiding citizen. On the contrary, human experience and prudence compel us to admit that the safety of society will be better subserved if the petitioner remains in prison for his entire term of twenty-one years.
The defendant had been formerly sentenced to confinement in the penitentiary for a period of thirty years. After serving approximately four-fifths of this term, he was conditionally pardoned by the Governor, provided that he never again break the penal laws of the Commonwealth. Less than one year after obtaining his freedom, the petitioner perpetrated four acts of burglary and one of attempted murder. No question of his guilt exists, for he pleaded guilty to all five indictments. After hearing evidence in each particular case, the court sentenced him to serve one year for the attempted murder and five years each for the four acts of burglary, making a total of twenty-one years. No order of sequence was specified in the order of the court.
Because the prisoner is unable to ascertain at any particular moment under which indictment he is serving, he claims that the sentences must run concurrently, although the order specifically stated the sentences to be consecutive. Hence, he is now claiming he should be given his freedom after serving six years. The majority opinion sustains this contention.
The necessity of specifying the order of sequence of sentences was enunciated in United States v. Patterson, 29 F. 775. The inflexibility of this technical rule was subsequently mitigated in United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed: 309, where the court *540presumed the sentences to follow the order of the three counts under the indictment. See also 70 A. L. It. 1511. However, these decisions are not binding upon us. Settled principles of law in our own Commonwealth support a rejection of this technicality.
Section 4786, Virginia Code (Michie), now mandatorily provides that sentences shall.not run concurrently unless so expressed in the- order. Prior to the amendment of 1934 the express provision of the statute was that the sentences should run consecutively. The intent of the court, unequivocally expressed, was that the defendant serve twenty-one years. The contention of the defendant, if allowed, will violate not only section 4786 as it was prior to the amendment of 1934, but also the express order of the court. The only complaint voiced by the defendant is that no order of sequence was indicated by the court, but I cannot see how in this particular case the absence of an order of sequence prejudices the petitioner. There is no probability of his obtaining any more pardons ; nor is there any reason to anticipate any newly-discovered evidence, for he was convicted on pleas of guilty, and not on a verdict based on conflicting evidence.
The effect of the court’s judgment 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 way of ascertaining- 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.
*541The petitioner could have requested that an order of sequence be given to his sentence when it was pronounced. If the court had refused to do so, he could have applied for a writ of error. He should not be allowed to acquiesce silently in the pronouncement of sentence, wait for six years and then free himself on the mere irregularity of the former proceeding by invoking an extremely technical rule. A writ of habeas corpus is never substituted for a writ of error.
Mere errors or irregularities in court proceedings are not grounds for relief by habeas corpus. Connella v. Haskell, 158 F. 285. See 25 Am. Jur. 184; 76 A. L. R. 468. Here the petitioner is detained, not by virtue of a void judgment, but by a valid judgment of a court of competent jurisdiction.
If it was error to fail to state the order of sequence in the judgment, petitioner’s only remedy was by writ of error. But I do not concede that it was error to fail to provide for an order of sequence in the judgment in order for the sentences to run consecutively. No order of sequence is, or was prior to 1934, required by the statute, and under the holding- in Parsons v. Commonwealth, supra, the periods of confinement may be lumped or aggregated.
Campbell, C. J., and Eggleston, J., concur in this dissent.