concurring:
I concur in the opinion of the majority in this case and I disagree with certain statements in the dissenting opinion, particularly the statements to the effect that the return of the defendant does not constitute a denial of the allegations in the petition and, in the face of a solemn order of the trial court which is silent as to the action taken by the court with respect to its compliance with the requirements of the recidivist statute of this State, that the petitioner, in his petition and in the affidavits filed by him, has made a prima facie showing that he is entitled to the relief for which he prays in this proceeding. I also challenge the correctness of the statement in the dissenting opinion that this Court is in error in holding that the duly cautioned provision of the recidivist statute is jurisdictional and the statement to the effect that the duly cautioned provision of the recidivist statute is not jurisdictional in character. I also characterize as palpably erroneous and contrary to many decisions of this Court certain statements in the dissenting opinion with regard to the presumption of the regularity of the proceedings and of the existence of jurisdiction exercised by a court of general jurisdiction and particularly the statement that “The circuit court’s jurisdiction, therefore, cannot be presumed from a silent record.”
It is true, as appears from the statutory provisions of Sections 1 and 7, Article 4, Chapter 53, Code, 1931, some of which are quoted in part in the dissenting opinion, that the Supreme Court of Appeals or any circuit court, or court given power by any particular statute, shall grant the writ of habeas corpus, to any person who shall, by himself or by someone in his behalf, apply for such writ by petition, showing by affidavit or other evidence a proper cause to believe that he is detained without lawful authority and that *15the court after hearing the matter shall either discharge or remand the petitioner or admit him to bail, as may be proper. It does not follow, however, as the dissenting opinion contends, that upon a verified petition supported by affidavits, such as those filed in the instant proceeding, this Court should, without more, hear the proceeding and grant the petitioner the relief which he seeks. It should not be overlooked that upon the petition and the affidavits this Court did issue the writ, but its issuance merely means that this Court took jurisdiction of the proceeding and does not indicate that upon the hearing the relief sought by the petitioner would be granted. The issuance of the writ in a habeas corpus proceeding does not mean that the relief sought will be granted any more than the granting of an appeal or a writ of error means that the judgment of the lower court will be reversed upon review. In a multiplicity of instances this Court has granted the writ but refused the relief sought in habeas corpus proceedings just as it has done in the instant case. It should also be remembered that the instant proceeding is not a direct proceeding in habeas corpus, such as for instance a proceeding to determine the rightful custody of a child in a controversy between its parents in which, perhaps, the petition, in the absence of any plea, might be taken for confessed and the relief prayed for granted upon the undenied allegations of the petition. That situation, however, does not exist in the case at bar. On the contrary this proceeding is a collateral attack upon a solemn judgment of a court of general jurisdiction, in which no irregularity appears from the record and in which the record is silent with respect to the action taken by the court in determining its jurisdiction and whether, upon the filing of the information, the petitioner was duly cautioned by the court. In a direct proceeding of the character indicated it is unnecessary to rely upon a presumption of regularity as ordinarily no prior judgment of the court is involved, whereas in the instant proceeding there is, by an unbroken line of decisions, a presumption that the court had jurisdiction to hear and determine the issues involved and that, in the absence of any record showing to the contrary, the *16proceedings were regular in character and complied with all the requirements imposed by law.
In my judgment the return in this proceeding sufficiently denied the material allegations of the petition and operated to require the petitioner to support them by adequate proof. But even if the return was not sufficient for that purpose it is clear to me that the petitioner is not entitled to the relief sought by virtue of the allegations of the verified petition and the affidavits in support of it for the obvious reason that they are not sufficient to overcome the presumption of the regularity of the proceedings had and the jurisdiction of the court to hear and determine the matter. Assuming the presumption to be a rebuttable rather than a conclusive presumption, it is not subject to rebuttal without clear and convincing proof and such proof is absent in this proceeding. If the presumption is conclusive, as numerous decisions of this Court hold, then it could not be overcome by even clear and convincing proof.
Contrary to the assertion in the dissenting opinion that the requirement of the recidivist statute, Section 19, Article 11, Chapter 61, Code, 1931, as amended, that the accused be duly cautioned is not jurisdictional, this Court has uniformly held in numerous decisions, that such requirement is jurisdictional for the reason that the jurisdiction to impose additional punishment under the recidivist statute is conferred by that statute and that failure of the court to comply with its requirements deprives it of jurisdiction to impose any additional punishment provided by the statute. State ex rel. Beckett v. Boles, 149 W. Va. 112, 138 S. E. 2d 851; State ex rel. Robb v. Boles, 148 W. Va. 641, 136 S. E. 2d 891; State ex rel. Bonnette v. Boles, 148 W. Va. 649, 136 S. E. 2d 873; State ex rel. Foster v. Boles, 147 W. Va. 655, 130 S. E. 2d 111; State ex rel. Cox v. Boles, 146 W. Va. 392, 120 S. E. 2d 707; Shears v. Adams, 145 W. Va. 250, 114 S. E. 2d 585; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; Dye v. Skeen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234. The requirement that the accused shall be duly cautioned is expressly provided by Section 19 of the statute and this Court has repeatedly held that the pro*17visions of that section are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the statute. State ex rel. Beckett v. Boles, 149 W. Va. 112, 138 S. E. 2d 851; State ex rel. Robb v. Boles, 148 W. Va. 641, 136 S. E. 2d 891; State ex rel. Bonnette v. Boles, 148 W. Va. 649, 136 S. E. 2d 873; State ex rel. Foster v. Boles, 147 W. Va. 655, 130 S. E. 2d 111; State ex rel. Cox v. Boles, 146 W. Va. 392, 120 S. E. 2d 707; State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Housden v. Adams, 143 W. Va. 601, 103 S. E. 2d 873; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; State ex rel. Medley v. Skeen, 138 W. Va. 409, 76 S. E. 2d 146; Dye v. Skeen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234.
In this proceeding the record of the trial court, a court of general jurisdiction, is silent with respect to its jurisdiction and the regularity of its procedure and in that situation this Court has held in many cases that the presumption that it satisfied and complied with all jurisdictional and procedural requirements for the entry of a valid judgment will be accorded prevailing force and effect. State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S. E. 2d 608; Pyles v. Boles, 148 W. Va. 465, 135 S. E. 2d 692, certiorari denied, 379 U. S. 864, 85 S. Ct. 130, 13 L. Ed. 2d 67; State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S. E. 2d 634; Bowles v. Mitchell, 146 W. Va. 474, 120 S. E. 2d 697; Rollins v. Daraban, 145 W. Va. 178, 113 S. E. 2d 369; State ex rel. Black v. Pennybacker, 144 W. Va. 612, 110 S. E. 2d 265; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; Lieberman v. Lieberman, 142 W. Va. 716, 98 S. E. 2d 275; Adkins v. Adkins, 142 W. Va. 646, 97 S. E. 789; State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. Ed. 1268; Lemley v. Wetzel Coal and Coke Company, 82 W. Va. 153, 95 S. E. 646; Starcher v. South Penn Oil Company, 81 W. Va. 587, 95 S. E. 28; Tomblin v. Peck, 73 W. Va. 336, 80 S. E. 450; State v. Lowe, 21 W. Va. 782, 45 Am. Repts. 570. Point 1 of the syllabus in the Lemley case contains this language: “The power of a court having jurisdiction over a particular subject matter *18to render a judgment or decree affecting the same cannot be attacked collaterally, unless it appears from the record of the proceeding in which the judgment or decree is entered that the court acted without jurisdiction.” The only exception to the foregoing rule is that where the record is silent there is no presumption that the accused was afforded the assistance of counsel or that he waived that right. State ex rel. Bullett v. Boles, 149 W. Va. 700, 143 S. E. 2d 133; State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S. E. 2d 608; State ex rel. Pettery v. Boles, 149 W. Va. 379, 141 S. E. 2d 80; State ex rel. Whytsell v. Boles, 149 W. Va. 324, 141 S. E. 2d 70; State ex rel. Arbraugh v. Boles, 149 W. Va. 193, 139 S. E. 2d 370; State ex rel. Browning v. Boles, 149 W. Va. 181, 139 S. E. 2d 263; State ex rel. Stumbo v. Boles, 149 W. Va. 174, 139 S. E. 2d 259; State ex rel. Hicklin v. Boles, 149 W. Va. 163, 139 S. E. 2d 182; State ex rel. May v. Boles, 149 W. Va. 155, 139 S. E. 2d 177; State ex rel. Powers v. Boles, 149 W. Va. 6, 138 S. E. 2d 159.
This Court has also uniformly held that the conviction and sentence of a person in a court of competent jurisdiction, in the absence of a showing that the judgment is wholly or partially void, will not be reviewed in a proceeding in ha-beas corpus. State ex rel. Duncan v. Boles, 149 W. Va. 334, 140 S. E. 2d 798; Pyles v. Boles, 148 W. Va. 465, 135 S. E. 2d 692, certiorari denied, 379 U. S. 864, 85 S. Ct. 130, 13 L. Ed. 2d 67; State ex rel. Mounts v. Boles, 147 W. Va. 152, 126 S. E. 2d 393, certiorari denied, 371 U. S. 930, 83 S. Ct. 298, 9 L. Ed. 2d 235; Shears v. Adams, 145 W. Va. 250, 114 S. E. 2d 585; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. Ed. 1268. In Pyles v. Boles, 148 W. Va. 465, 135 S. E. 2d 692, certiorari denied, 379 U. S. 864, 85 S. Ct. 130, 13 L. Ed. 2d 67, this Court said that a valid judgment entered in a criminal proceeding in which the court has jurisdiction of the subject matter and the parties cannot be assailed or disturbed in a habeas corpus proceeding. In State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. *19786, 99 L. Ed. 1268, this Court held in point 1 of the syllabus that “A conviction and sentence of a person in a court of competent jurisdiction, in the absence of a showing that the judgment is wholly or partially void, will not be reviewed in a proceeding in habeas corpus.” In the opinion in that case this Court said: “A proceeding in habeas corpus is generally, but not in all instances, a collateral attack upon a former judgment, by virtue of which a person is confined in prison. The instant proceeding is a collateral attack on the judgment of the Circuit Court of Logan County sentencing the petitioner to life imprisonment. ‘A judgment, valid on its face and rendered by a court of general jurisdiction having jurisdiction of both parties and subject matter, is not open to collateral attack.’ Crickmer v. Thomas, 120 W. Va. 769, 200 S. E. 353; Newhart v. Pennybacker, 120 W. Va. 774, 200 S. E. 350; Starcher v. Oil Co., 85 W. Va. 587, 95 S. E. 28, * * * . A judgment pronounced by a court of competent jurisdiction, valid on its face, will not be disturbed on a writ of habeas corpus, a collateral attack,..but. the petitioner is left, to his remedy by a writ .of error. Schad v. McNinch, 103 W. Va. 44, 136 S. E. 865; Ex Parte Evans, 42 W. Va. 242, 44 S. E. 888; Ex Parte Mooney, 26 W. Va. 36.”
There is a valid distinction with respect to the presumption of jurisdiction between a court of general -jurisdiction and ¿ court of special jurisdiction. Courts of general jurisdiction are presumed to have jurisdiction of both the subject matter,and parties to causes in which they render judgments, 11 M. J., Jurisdiction, Section 23; and if the record of a cause shows that the court had jurisdiction it is conclusively presumed to speak the truth in that particular, and the judgment, unless successfully assailed for fraud or collusion, is binding until reversed upon appeal or such direct rehearing as may be warranted by law. 11 M. J., Jurisdiction, Section 25; point 1, syllabus, Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L.R.A., N. S., 558. On the other hand there is no such presumption as to the jurisdiction of courts of special or limited jurisdiction and the jurisdiction of those courts must affirmatively appear by .sufficient evi*20dence or a proper averment in the record, or their judgments will be deemed to be void on their face. 11 M. J., Jurisdiction, Section 27; 30A Am. Jur., Judgments, Section 34; 21 C.J.S., Courts, Section 96 (a); 49 C.J.S., Judgments, Section 425 (1). In 30A Am. Jur., Judgments, Section 887, the text contains these statements: “The mere fact that the jurisdiction of a court to render a particular judgment does not appear of record does not render such judgment subject to collateral attack. Indeed, the general rule is that a collateral attack may not be made upon a judgment where the absence of jurisdiction does not appear upon the record. Under this rule, the validity of a judgment when collaterally attacked must be tried by an inspection of the record alone, and no other or further evidence on the subject is admissible, even though such evidence might be sufficient to impeach the judgment in a direct proceeding against it. Where the record is silent as to the existence of any fact necessary to the validity of a judgment, it is presumed on collateral attack that the court inquired into and found the existence of such fact.” In Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 23 L.R.A. 737, 45 Am. St. Rep. 912, this Court said in the opinion that as to courts of general jurisdiction, their jurisdiction will be presumed and need not affirmatively appear unless the want of jurisdiction does appear. See also Davis v. Town of Point Pleasant, 32 W. Va. 289, 9 S. E. 228; Wandling v. Straw and Morton, 25 W. Va. 692.
. This court has held, in effect, in numerous cases, that where the record of a court of general jurisdiction is merely silent with respect to the matter affecting its jurisdiction or the regularity of its proceeding, the presumption is conclusive that it satisfied and complied with all jurisdictional and procedural requirements. Pyles v. Boles, 148 W. Va. 465, 135 S. E. 2d 692, certiorari denied, 379 U. S. 864, 85 S. Ct. 130, 13 L. Ed. 2d 67; Crickmer v. Thomas, 120 W. Va. 769, 200 S. E. 353; Newhart v. Pennybacker, 120 W. Va. 774, 200 S. E. 350, 200 S. E. 754; Schad v. McNinch, 103 W. Va. 44, 136 S. E. 865; Lemley v. Wetzel Coal and Coke Company, 82 W. Va. 153, 95 S. E. 646; Starcher v. South Penn Oil Company, 81 W. Va. 587, 95 S. E. 28. In the Starcher case, in *21which the validity of the appointment of a personal representative by the clerk of the county court, which was confirmed by the county court at a regular session, was attacked collaterally, this Court said that the order of the county court, a court of general jurisdiction with respect to such appointment, which confirmed the appointment, was not subject to collateral attack, and in point 3 of the syllabus held that “Ordinarily the orders and decrees of a court touching a subject-matter over which it has general jurisdiction are not open to collateral attack.” In the opinion are these statements: “Ordinarily, where a court has general jurisdiction of a subject-matter, and its records show the proper exercise of that jurisdiction, such records are conclusive except in a proper proceeding attacking their validity.”, and, with respect to such appointment, “it must be held that where the record of the county court shows the appointment of an administrator in the regular way such appointment and such record cannot be attacked collaterally. It must be attacked in a suit brought for that purpose or by appeal from the order of his appointment, * *
It is clear, however, that whether the foregoing presumption is a rebuttable presumption or a conclusive presumption, the petitioner has failed to establish, by adequate proof, that he should be granted the relief which he seeks in this proceeding, and for that reason he is not entitled to be released from his present confinement in the penitentiary of this State.
It is to be noted that in the Federal Courts a proceeding in habeas corpus under the federal statute, the Judiciary Act of February 5, 1867, Chapter 28, Section 1, 14 Stat. 385, as amended, has been, in large measure, converted into an appeal or writ of error, in which various factual matters may be considered and determined in ascertaining whether the petitioner is entitled to the relief which he seeks in such proceeding. See dissenting opinion of Justice Clark in Fay v. Noia, 372 U. S. 391, at page 446, 83 S. Ct. 822, 9 L. Ed. 2d 837. In the Fay case the court held that even if the state court adjudication turns wholly on primary, historical facts, a Federal District Court has a broad power in habeas corpus to *22hold an evidentiary hearing and determine the facts. In Townsend v. Sain, 372 U. S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770, the Court held that when an application by a state prisoner to a Federal Court for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the Federal Court in which the application is made has the power to receive the evidence and try the facts anew. The Court also held that where the facts are in dispute, the Federal District Court must grant an evidentiary hearing if (1) the merits of the factual dispute were not resolved in the state hearing, either at the time of the trial or in a collateral proceeding; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the State Court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court, hearing; or (6) for any reason it appears that the state trier of fact did not afford the applicant a full and fair fact hearing. Notwithstanding the expansion of the procedure in the Federal Courts to conduct an evidentiary hearing anew, this Court has held in many cases that a habeas corpus proceeding is not a substitute for a writ of error or other appellate process and that a valid judgment entered in a criminal proceeding, in which the court has jurisdiction of the subject matter and the parties, can not be assailed or disturbed in a habeas corpus proceeding. Pyles v. Boles, 148 W. Va. 465, 135 S. E. 2d 692, certiorari denied, 379 U. S. 864, 85 S. Ct. 130, 13 L. Ed. 2d 67; State ex rel. Nicholson v. Boles, 148 W. Va. 229, 134 S. E. 2d 576, certiorari denied, 375 U. S. 25, 84 S. Ct. 89, 11 L. Ed. 2d 43; State ex rel. Clark v. Adams, 144 W. Va. 771, 111 S. E. 2d 336, 89 A.L.R. 2d 528, certiorari denied, 363 U. S. 807, 80 S. Ct. 1242, 4 L. Ed. 2d 1149; State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. Ed. 1268; and the many cases .cited in the opinion in the Clark case. I am not disposed to depart from that principle or to refuse to apply it in a proceeding in habeas corpus.
In my judgment the decision of the majority in this proceeding is clearly right and is in all respects fully sustained *23by many prior decisions of this Court. In consequence it has my approval and elicits this concurrence.