dissenting:
Very respectfully I dissent from the Court’s holding embodied in the majority opinion.
I believe that the prisoner has made a prima facie case in his habeas corpus petition which is supported by his oath; and that the Court has erred in remanding the prisoner without affording him an opportunity to prove his case, if additional proof is deemed necessary. “Assuming that the allegations of a petition for a writ state a case that will entitle the petitioner to a discharge, if proved, the court cannot refuse to hear competent and relevant evidence upon the issues raised by the pleadings.” 25 Am. Jur., Habeas Corpus, Section 151, pages 247-48.
A habeas corpus proceeding is a civil proceeding. It is commonly used in this state to test the legality of one’s restraint as a consequence of criminal proceedings, to determine the right to custody of minor children or to test the legality of a restraint imposed upon one as a consequence of lunacy proceedings. Habeas corpus proceedings, by R.C.P. 81(a) (5), are excluded from the operation of the Rules of Civil Procedure; but I believe that such proceedings otherwise, generally speaking, are governed by the usual principles applicable to pleading and proof in civil cases.
The procedure in habeas corpus in this state is provided for by Article 4 of Chapter 53 of Code, 1931. Our procedure is in this respect sui generis and, therefore, in relation to purely procedural matters, decisions of appellate courts of other jurisdictions are of limited value to us. Our statutory procedure is quite simple and clearly defined.
Section 1 provides that the writ “shall be granted forthwith * * * to any person who shall, by himself or by some one in his behalf, apply for the same by petition, showing by affidavit or other evidence probable cause to believe that he is detained without lawful authority.” Section 7 provides that the court or judge, “after hearing the matter both upon the return and any other evidence, shall either *7discharge or remand” the prisoner or admit him to bail, as may be proper.
The habeas corpus petition in this case specifically alleges that the judge of the Circuit Court of Morgan County failed to “duly caution” the prisoner as required by Code, 1931, 61-11-19, as amended, before the prisoner was required to answer whether he was the same person who had been previously convicted of a felony as alleged in the information. The prisoner asserts that, therefore, the trial court lacked “jurisdiction” to add five years to the sentence under the habitual criminal statute; that he has served the maximum sentence provided by law for the principal offense; and that, therefore, he is entitled to be discharged by habeas corpus from further imprisonment.
The allegations of the petition are verified by the affidavit of the prisoner. In my judgment, the prisoner has thereby made a -prima facie showing, exactly the same type of showing we accept regularly in the numerous “assistance of counsel” cases. These allegations do not contradict the court records or orders, because the trial court records are silent in relation to the question whether the prisoner was duly cautioned. Additional affidavits by other persons were submitted by the prisoner, as was stated in the majority opinion.
What showing was made to the contrary to afford basis for the majority opinion? A demurrer to the petition was filed in behalf of the respondent which states a rather singular proposition as follows: “It does not affirmatively appear from the record of petitioner’s trial that the trial court did not fully comply with the provisions of Code, 61-11-19 by failing to duly caution him.” (Italics supplied.)
A verified answer to the habeas corpus petition also was filed in behalf of the respondent. It contains no specific denial of the factual allegation of the petition that the court did not duly caution the prisoner. It does not allege affirmatively that the prisoner was duly cautioned. The distinguished assistant to the attorney general who appeared before the Court in behalf of the respondent has *8been impressive by his familiarity with legal principles pertaining to cases of this nature and by his integrity and forthrightness in his many appearances before this Court. He knows fully how to make clear and specific denials, by answer or return, of factual allegations contained in a habeas corpus petition. If the situation had justified it, we may safely assume that he would have made such denial. The only allegation in the return or answer which even remotely tends to deny the factual allegation of the petition is, at most, an allegation of a legal conclusion and is as follows: “Respondent avers that Harold Edward Smith is legally confined in the West Virginia Penitentiary pursuant to the aforesaid judgment, rendered by a court of competent jurisdiction; that the judgment is valid on its face; and that a valid commitment has been issued under said judgment.”
Habitual criminal statutes are generally held to be highly penal, in derogation of common law, to' be strictly construed against the prosecution and not to be extended to embrace cases not falling clearly within the statutory provisions. 24B C.J.S., Criminal Law, Section 1959, page 438. This Court has held, in line with general principles pertaining to pleadings in civil cases, that, in a habeas corpus proceeding, the facts essential to permit further detention of the prisoner must, in substance, be alleged in the return and that otherwise the prisoner must be discharged. State v. Reuff, 29 W. Va. 751, 763, 2 S. E. 801, 807; State ex rel. Vizziri v. Lowe, 103 W. Va. 266, 137 S. E. 10. “The refusal of the respondent to tender an issue as to a specified matter dispenses with the necessity of proof thereon.” 39 C.J.S., Habeas Corpus, Section 97, page 663.
It is true that there is, as a general rule, a presumption of the regularity of proceedings of courts of general jurisdiction but, upon a record silent as to such matters, the presumption is not conclusive but rather it is rebuttable. Here the prisoner has, in my judgment, submitted the only specific, legally sufficient allegation and the only proof on the “duly cautioned” requirement; and yet he is remanded to prison. Even if it be conceded that the allegations of the answer are sufficient to present an issue of fact; and even *9if -it be conceded that the prisoner’s sworn pleading and supporting affidavits constitute no measure of proof, the most that can be said for the majority opinion is that the Court has rendered a decision in a serious case on an unresolved issue of fact. The form or nature of the proof submitted by the prisoner has not been challenged or objected to by the respondent. The respondent had adequate time and opportunity to object to the form of the proof, to submit proof, or to ask for a continuance to permit the taking of proof if it were obtainable. He made no legally sufficient denial of the factual allegation of the petition and he submitted no proof by affidavit or otherwise; and yet the prisoner lost his case.
I am troubled by the sweeping, unqualified statements in the majority opinion concerning the scope, nature and general application of the presumption of regularity of court proceedings and the presumption of jurisdictional prerequisites. First, it must be conceded that, upon a silent record, such presumptions are rebuttable. While, as the majority opinion states, the presumption of regularity does not obtain on a silent record as to the constitutional right to assistance of counsel; still the prisoner in such circumstances may prove that, as a matter of fact, he was denied his constitutional right in that respect.
Generally speaking, jurisdiction (aside from such matters as territorial jurisdiction) consists of two elements— jurisdiction of the person and jurisdiction of the subject matter. These same general principles apply to both civil and criminal cases. In cases of trials for criminal law violations, jurisdiction of the subject matter is obtained by the warrant, indictment, presentment or information which charges the crime. Jurisdiction of the person is obtained by the presence of the accused in court to answer the charge. State ex rel. Hinkle v Skeen, 138 W. Va. 116, 123-24, 75 S. E. 2d 223, 227; 22 C.J.S., Criminal Law, Section 143, page 379, and Section 144, page 381.
Courts of record exercising jurisdiction in criminal cases are given jurisdiction in relation to habitual criminal pro*10ceedings. That is not a common law jurisdiction, or one inherent in constitutional courts of general jurisdiction. It is a jurisdiction which is wholly of statutory creation. . The court obtains jurisdiction of the subject matter by a pleading authorized by statute and designated as an information. Jurisdiction of the accused is obtained by his presence in court, whether in custody of the sheriff, in response to a bond or recognizance, or by voluntary appearance. The information is, of course, essential to the court’s jurisdiction to act in the habitual criminal proceeding. Jurisdiction of the subject matter cannot be waived. While in the exercise of that jurisdiction, certain duties are imposed upon the court, I do not believe it follows that performance of such duties, even though mandatory, is jurisdictional in the sense that their nonperformance will render the entire proceeding void and subject to collateral attack for lack of jurisdiction. I believe this Court has erred in treating the “duly cautioned” provision as jurisdictional and in holding that noncompliance therewith will render the proceeding void for lack of jurisdiction.
There can be no question in this case of the trial court’s jurisdiction of the person of the prisoner in the habitual criminal proceeding. I readily recognize that a proper information in writing is essential to a trial court’s jurisdiction of the subject matter in such a proceeding; and that the court loses its jurisdiction of the subject matter under the information unless, before sentence is imposed for the principal offense and before the expiration of the term at which the prisoner was convicted, the court shall cause the prisoner to be brought before it and require him to say whether he is or is not the same person who was convicted of the prior felony or felonies as charged in the information. The court, as I read the statute, is required to duly caution the prisoner only before he acknowledges in open court that he is the same person. As I understand the statute, the court is not required to duly caution the prisoner upon a jury trial of the issue whether he is the same person charged in the information; and this tends to substantiate the proposition that the “duly cautioned” provision is not *11a jurisdictional prerequisite to a valid sentence under the habitual criminal statute.
Having obtained jurisdiction of the person and of the subject matter in a habitual criminal proceeding, the criminal court may he remiss in performance of duties imposed upon it by law and such errors may require reversal on appeal; but it does not follow that failure to perform duties of a procedural nature constitutes a jurisdictional omission of such nature as to render the proceeding void and subject to collateral attack. Jurisdiction embraces the right to decide incorrectly as well as correctly; to act unlawfully as well as lawfully; and to commit error, even of a prejudicial, reversible nature. These principles were so well illustrated in the final decision in Aldrich v. Aldrich, 147 W. Va. 269, 127 S. E. 2d 385, 163 So. 2d 276 (Fla.), 378 U. S. 540, 84 S. Ct. 1687, 12 L. Ed. 2d 1020. That case illustrates the distinction between jurisdiction of a court as distinguished from its power, right, authority or duty or lack thereof in the exercise of jurisdiction. For reasons stated, I believe the Court is in error in holding that the “duly cautioned” provision is jurisdictional and that the Court, in habeas corpus proceedings, is in error in releasing a flood of prisoners from the penitentiary on the basis of that untenable legal proposition.
Inasmuch as the Court has held in several cases that, even though a court has jurisdiction of the person and of the subject matter in a habitual criminal proceeding, the proceeding may be adjudged to be void and subject to collateral attack because of the manner in which the court procedurally exercises that jurisdiction, I believe additional complications arise in relation to the presumption of regularity of court proceedings. It is not clear to me, but I assume that these decisions dealing with the “duly cautioned” provision of the statute imply that such procedural matter relates to jurisdiction of the subject matter.
This Court has held that jurisdiction, as it relates either to parties or to subject matter, “must affirmatively appear from the record.” Dixon et al. v. Hesper Coal & Coke Co. *12et al., 100 W. Va. 422, pt. 5 syl., 130 S. E. 663; Fulton v. Ramsey et al., 67 W. Va. 321, 326, 68 S. E. 381, 383. To the same effect, see Shelton v. Snydor, 126 Va. 625, pt. 4 syl., 102 S. E. 83, and cases cited therein; 11 M. J., Jurisdiction, Section 11, page 437. I am troubled, therefore, by the apparent holding as summarized in the syllabus of the majority opinion that it must be presumed that there was before the court an information in writing, the sole pleading by which the trial court, whether a constitutional court or a statutory court, may acquire jurisdiction of the subject matter.
My understanding is that, in our numerous cases in which we have held convictions to be void and subject to collateral attack because of denial of assistance of counsel, we have recognized mandatory constitutional duties on the part of the sentencing court, and that failure of performance of such mandatory duties constitutes a denial of due process of law which, under recent decisions of federal courts, may cause a conviction to be void; but I do not understand that any court has held such matters to be “jurisdictional.” The “duly cautioned” provision, however, is merely statutory rather than a “fundamental right” or constitutional right, as is the right to assistance of counsel.
The sweeping language of the syllabus in the majority opinion is not confined to any single type of courts, and it makes no qualification of the presumption of regularity as it may relate to the type of proceeding. “The rule as to presumptions regarding the jurisdiction of courts of general jurisdiction is different with respect to courts of special or limited authority. Their jurisdiction must affirmatively appear by sufficient evidence or a proper averment in the record, otherwise their judgments will be deemed void on their face.” (Italics supplied.) 11 M. J., Jurisdiction, Section 27, page 451. “The jurisdiction of a court of limited jurisdiction will not be presumed, unless the jurisdictional facts affirmatively appear from the record, but it is within the constitutional power of the Legislature to change this rule.” Slater v. Melton et al., 119 W. Va. 259, pt. 2 syl., 193 S. E. 185. To the same effect, see Boone et al. v. Boone et al., 123 W. Va. 696, 703, 17 S. E. 2d 790, 794. “The jurisdictional *13facts necessary to give a court of special and limited jurisdiction a right to act must appear in the record of its proceedings, or such proceedings will be regarded as had without any jurisdiction and therefore as absolute nullities.” Mayer v. Adams, 27 W. Va. 244, pt. 4 syl. See also Yates et al. v. Taylor County Court, 47 W. Va. 376, pt. 3 syl., 35 S. E. 24; Shank et al. v. Town of Ravenswood, 43 W. Va. 242, pt. 3 syl., 27 S. E. 223. Many of the courts of the state which exercise jurisdiction in criminal cases, including jurisdiction in habitual criminal proceedings, are statutory courts of limited jurisdiction. Their jurisdiction cannot be presumed unless such is provided by statute. The majority opinion does not state that there should be a qualification of general principles relating to presumptions of regularity or jurisdiction when applied to courts of limited jurisdiction.
It is true that the habitual criminal proceedings in this case were in a circuit court, which is a constitutional court of general jurisdiction. Even in case of a court of general jurisdiction, however, when it is exercising a jurisdiction which is purely statutory as distinguished from an inherent or common law jurisdiction, such jurisdiction cannot be presumed but must appear affirmatively from the court record. Cruikshank et al. v. Duffield et al., 138 W. Va. 726, 735, 77 S. E. 2d 600, 605; Davis v. Town of Point Pleasant, 32 W. Va. 289, 293-94, 9 S. E. 228, 230; Mayer v. Adams, 27 W. Va. 244, 252; Blankenship v. Blankenship, 125 Va. 595, 100 S. E. 538; 22 C.J.S., Criminal Law, Section 159, page 414; 21 C.J.S., Courts, Section 96c, pages 151-152. The circuit court in this case, in the habitual criminal proceeding, was not exercising a common law or an inherent jurisdiction but rather one created and regulated wholly by statute. The circuit court’s jurisdiction, therefore, cannot be presumed from a silent record. Rather, in order that its actions may be regarded as valid, jurisdictional prerequisites must affirmatively appear from the record. For this reason, it cannot be presumed that an information in -writing was before the court; and if the requirement that the court duly caution the prisoner is jurisdictional (which I do not be*14lieve it to be), then this jurisdictional prerequisite cannot be presumed but it must affirmatively appear from the record in order that the additional sentence imposed pursuant to the habitual criminal law may be valid even in a court of general jurisdiction.