(dissenting). I am unable to agree with the views expressed or the conclusion reached by the majority members of this court in the opinions prepared by Judge Crimson *168and by Chief Justice Morris. I agree generally with the views expressed in the dissenting opinion prepared by Judge Burke and with the conclusion reached by him but desire to add some observations of my own.
In the petition for a writ of habeas corpus it is alleged that Ivan Davidson is “imprisoned and restrained of his liberty by the above named respondent at the state penitentiary in Bismarck, N. Dak. That the cause or pretense of such confinement or restraint is that the said Ivan Davidson is held from a sentence of the Judge at Cass County for the ‘crime of conviction of three or more felonies prior to his conviction of Rape in the First Degree on January 7,1948.’ . . . That the said imprisonment is illegal and there is no ‘crime of conviction of three or more felonies prior to his conviction of Rape’ either at common law or by statute.”
NDRC 1943, 32-2211 provides:
“The person upon whom the writ is served must state in his return, plainly and unequivocally: 1. Whether he has or has not the party in his custody or under his power or restraint; 2.- If he has the party in his custody or power or under his restraint he must state the authority and cause of such imprisonment or restraint; 3. If the party is detained by virtue of any writ, warrant, or other written'authority, a copy thereof must be annexed to the return and the original produced and exhibited to the court on the hearing of such return; . .
NDRC 1943, 32-2217 provides:
“If it appears on the return of. the writ that the party is in custody by virtue of process from any court of this state, or any judge or officer thereof, such person may be discharged in any of the following cases, subject to the restrictions of section 32-2202: . . . 3. When the process is defective in some matter of substance required by law rendering such process void; 4. When the process, though regular in form, has been issued in a case not allowed by law; . .
NDRC 1943, Sec 32-2202 reads as follows:
“The person in whose behalf the application is made is not entitled to relief from imprisonment or restraint under a writ of habeas corpus, if the time during which such person may be *169detained legally in custody lias not expired, whenever it appears: 1. That he is detained in custody by virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; or 2. Except as provided in section 32-2217, that he is detained in custody by virtue of the final order or judgment of any competent court of criminal jurisdiction or of any process issued upon such order or judgment.”
In conformity with the requirements of the statute the respondent, warden of the State Penitentiary, filed a return wherein he alleged that “he has the said Ivan Wilf ord Davidson in his custody and control by virtue of a judgment and commitment issued out of the District Court in and for the County of Cass, State of North Dakota on the 16th day of January 1948.” There is attached to the return and made a part thereof a copy of the judgment or sentence set forth in the opinions prepared by Judge Grimson and by Chief Justice Morris and in the dissenting-opinion prepared by Judge Burke. Such judgment states that “this being the day fixed by the.Court for the pronouncing of Judgment upon conviction of the Defendant, above named, of the crime of Conviction of three or more felonies prior to his conviction of Rape in the First Degree on Jan. 7, 1948, as charged in the Information heretofore filed against said Defendant, in this court; . . . the Court does adjudge, and the sentence of the Court is that you, Ivan Wilf ord Davidson be imprisoned in the Penitentiary at Bismarck, in said State, for the term of life . . ■. .”
The laws of this state make it the duty .of the clerk of the district court to “keep a minute book which shall contain the daily proceedings of the district court and which shall be signed by the clerk,” NDRC 1943, 11-1701 (10).
The laws of this state further provide:
“The clerk of the district court in which any criminal action or proceeding is pending or tried shall enter, in the minutes of such court, each ruling or decision of the court made in open court, if such ruling is not noted by the official reporter. A certified copy of any or all such entries shall be and become a part of the record of said action.” NDRC 1943, 29-2307.
*170“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and, as soon as may be, must annex together and file the following papers which constitute a record of the action: 1. The information or indictment and all the papers filed in the action, together with a copy of the minutes of the plea; 2. A copy of the minutes of the trial; 3. The written charges given or refused, with endorsements, if any, thereon, and the written instructions given by the court, and the copy of any oral instructions by the court and filed with the clerk; and 4. A copy of the judgment.” NDRC 1943, 29-2623.
. “When a judgment imposing a penalty other than a fine only or a judgment of death has been pronounced, a certified copy of the entry thereof upon the minutes must be furnished forthwith to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.” NDRC 1943, 29-2701.
. “If the judgment is for imprisonment in the penitentiary, the sheriff .of the county, upon receipt of a certified copy thereof, must take and deliver the defendant to the warden of the penitentiary.. He also must deliver to the warden or other proper officer a certified copy of the judgment and take from such warden or other proper officer a receipt for the defendant, and make return thereof to the court.” NDRC 1943, 29-2705.
Upon hearing of this, proceeding in this court there was submitted, certified copies of the minutes of the clerk in two criminal actions or proceedings against the petitioner. Such mfimites show thát a criminal information was filed against the petitioner on December 22, 1947, charging him with rape in the first degree, that he entered a plea of not guilty and that the case came on for trial to a jury on January 6, 1948, and that a verdict of guilty of rape in .the first degree-was returned on January 7, 1948. ' The last entry made in the minutes of the court concerning this action is the return of the verdict on January 7, 1948. This action according to the minutes was criminal action number 8007 on the register of criminal actions. The minutes of the clerk further show that on January 16, 1948, the state’s attorney filed what is denominated a.criminal informa*171tion charging the petitioner with the “crime of conviction of three or more felonies prior to his conviction of rape in the first degree on January 7,1948.” In the dissenting opinion prepared by Judge Burke there is set forth in full the minutes of the clerk as entered and made a part of the record in this latter action, and I shall not reproduce any part of the minutes so set forth by Judge Burke in his opinion. The action or proceeding so instituted on January 16, 1948, was treated as a new criminal action and was entered as case number 8011 in the register of criminal actions. It will be noted that the minutes of the clerk refer alone to case number 8011 — the action or proceeding under the habitual criminal statute. They are all entered in such action and no reference was made in the minutes of the clerk to any proceedings or action had in case number 8007; According to such minutes all proceedings that were had and taken wer¿ had and taken in said action number 8011, the action under the habitual criminal statute. There was also submitted upon the hearing a duly certified copy of the -court reporter’s transcript of the proceedings had in the action against the petitioner Davidson on January 16, 1948. Reference is made to these proceedings and parts of the transcript of the proceedings are set forth in the dissenting opinion prepared by Judge Burke. Reference to the proceedings is also made in the opinions .prepared by Judge Grimson and by Chief Justice Morris.' The entire record establishes beyond any doubt that the parties' and the court considered the then pending proceeding .as. an independent criminal action wherein the defendant was charged with “a new and separate” crime, — the “crime of conviction of three or more felonies prior to his conviction of rape in the first degree on January 7, 1948.” In fact, the trial court, as shown in the portion of the proceedings quoted by Judge Burke, so stated and he furthermore stated “you may enter a plea at this time of either guilty or not guilty to each one of these charges as made in the information.” ’
The court reporter’s transcript of the proceedings had on January 16, 1948, shows that after the state’s attorney had pre^ sented the information charging the petitioner with committing “the crime of conviction of three or more felonies prior to his *172conviction of rape in the first degree on January 7, 1948,” and after the information had been handed to the defendant and'read by the state’s attorney, the court made a statement to the petitioner, quoted in the opinion prepared by Judge Burke, wherein he said in part, “Mr. Davidson, you are represented here by Mr. Huseby as your counsel. But in view of the nature of the charge, I am going to inform you of the effect of this new and separate charge from the one on which you were convicted on the 7th of January; and you have the right, if you wish it, to stand trial on this charge, and you have the right to have the charges made in this information proved by the state, or you may enter a plea at this time of either guilty or not guilty to each one of these charges as made in the information. . . . I also inform you that if these charges are proved the penalty which can be imposed can be no greater than the penalty under the crime for which you were convicted in this county .on’the 7th of January of this year.” Thereupon the following colloquy took place between the court, Davidson’s counsel and Davidson:
“Mr. Huseby: Your honor, I think there are a couple of questions that you can answer which can clear up a number of problems for the defendant. First of all, if the defendant plead guilty to the habitual criminal act, the sentence, — could there be a later sentence on the charge to which he has been found guilty of first degree rape.
“The Court: Not if the court has jurisdiction of this proceeding and the penalty imposed is within the provisions of the statute.
“Mr. Huseby: I don’t quite understand.
“The Court: If he admits these charges that are made here and is sentenced upon this information, that precludes a sentence upon the conviction for first degree rape, provided that the court has proper jurisdiction of this proceeding and that the sentence imposed is within the limits prescribed by the law; in other ■words, he is sentenced now upon this, if he admits it, rather than upon the rape charge, but ! simply informed him that the maximum penalty under either is the same.
“Mr. Huseby: Mr. Davidson knows all the facts. It is up to him to decide how he wants to plead to the information.
*173“Defendant: To this here?
“The Court: Yes.
“Defendant: Yes, your honor.
“The Court: Q. What is your plea?
“Defendant: A. I am guilty.
“The Court: Is there any legal reason why sentence should not be imposed at this time, any legal reason?
“Defendant: No.”
Thereupon the petitioner’s counsel made a statement wherein he questioned petitioner’s mental competency and requested that opportunity be given to have the petitioner examined by doctors at the State Insane Asylum or possibly by a psychiatrist from out of the State. Following this the court asked the state’s attorney if he had any recommendation to make whereupon the state’s attorney made a statement wherein he recounted petitioner’s record of criminal'-offenses. He then referred to petitioner’s claim of innocence of the rape charge and stated that it was his firm belief that he committed the crime and that no one else could have. He then said, “We do not have his prior record — or perhaps I should say leaving out of consideration his prior record, in view of the brutality of the evidence in the rape case, and (if) we had not had this prosecution, when the time came for sentencing in the rape case I would have recommended to the court that the defendant be imprisoned for life.” He then concluded by saying, “I might also say that his record shows a parole violation, which is not charged in the information, but he did violate a parole at one time. Therefore, your honor, in this case, under the habitual criminal act, that is, for the conviction of three or more felonies, it is the recommendation, my recommendation, that the defendant be imprisoned for life.” The court thereupon made a statement which is referred to-in the other opinions and closed such statement by saying: “And it is the sentence that you, Ivan Wilford Davidson, be confined to the state penitentiary, at Bismarck, North Dakota, at hard labor, for the balance of your natural life.”
The habitual criminal statute in this state does not create a new crime, it “provides for increased or added punishment for. a person who is convicted of a felony in this state where before *174the commission of snch felony, snch person has been convicted two or more times of felonies either in this state or in any other state in the United States.” Ryan v. Nygaard, 70 ND 687, 697, 297 NW 694; Laws 1927, Chapter 126; NDRC 1943, 12-0620, 12-0621, 12-0623. That also seems tó be the rule under habitual criminal laws generally. 24 CJS Sec 1971, p 1173; Ex Parte Kuwitzky, 135 Neb 466, 282 NW 396; Ex Parte Wray, 61 Okla Cr 162, 66 Pac2d 965; State v. Miller, 239 Wis 334, 1 NW2d 178; Watson v. State, 190 Wis 245, 208 NW 897; Mundon v. State, 196 Wis 469, 220 NW 650; In re Moreno, 83 Ohio App 54, 82 NE2d 325.
“A former conviction is pleaded and proven, not as constituting a separate and distinct offense, but as augmenting the penalty provided in the statute for the -first offense.” Watson v. State, supra.
' “Habitual Criminal Statute, . . . , does not create or define a hew or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found-.” Ex Parte Wray, supra.
In'this case there is no contention that the habitual criminal statute of this state creates an offense for which a person may be separately sentenced. It is not denied that it provides only for increased or added punishment for a person, who is convicted of a crime where before the commission of such felony such person has been convicted of felony two or more times either in this state or in any other state of the United States. However, it is asserted in the opinions of the majority members that the petitioner was sentenced for the crime of rape in the first degree, and that the record so shows. Let us look, at the record. As said, the opinions of Judge Grimson, Chief Justice Morris, as well as the dissenting opinion of Judge Burke, set forth the judgment, 'a copy of which is attached to respondent’s return: That judgment specifically states that “on this 16th day of January A. D. 1948, the State’s Attorney in and for the County of Cassj State of North- Dakota, and the defendant, Ivan Wilford Davidson come into court, and this being the day fixed by the court for the pronouncing of judgment upon conviction of *175the defendant, above-named, of tjie crime of conviction.of-three or more felonies prior to his conviction of rape in the first degree on January 7; 1948, as charged in the information, heretofore filed against said defendant, in this court; . . The minutes' of the clerk set forth in Judge Burke’s dissenting opinion are to like effect. There is nothing in the court reporter’s transcript of the proceedings had at the time .of the arraignment of the petitioner on the information filed under the habitual criminal act which in any manner conflicts with or contradicts the clerk’s minutes or the judgment or sentence which was signed by the judge and attested by the clerk, and a ,copy of which was furnished to the warden of the penitentiary as his authority for receiving and detaining the petitioner. NDRC 1943, 29-2705. It is apparent from what took place and what was said by the trial judge that he' intended to sentence and did sentence and pronounce judgment against the petitioner for the alleged “crime of conviction of three or more felonies prior to his conviction of rape in the first degree on January 7, 1948,” and for that alone. After the information had been read by the state’s attorney the court said to the petitioner:
“In view of the nature of the charge, I am going to inform you of the effect of this new and separate charge from the one on which you ivere convicted on the 7th of January; that you have the right, if you wish it, to a trial on this charge, and you have the right to have the charges made in this information proved by the State, or you may enter a plea at this time of either guilty or not guilty to each one of these charges as made in the information. In other words, you may admit or deny, and if you deny them it is up to the State to prove them. I also inform you that if these charges are proved the penalty which can be imposed can be no greater than the penalty under the crime for which you were convicted in this county on the 7th of January of this year.”
Immediately following this statement the following eolloq'uy took place between the petitioner’s counsel and the court:
“Mr. Huseby: Your honor, I think there are a couple” of questions that you can answer which can clear up a number of problems for the defendant. First of all, if the defendant plead guilty to the habitual criminal act, the sentence, — could there be *176a later sentence on the charge to which he has been found guilty of first degree rape.
“The Court: Not if the court has jurisdiction of this proceeding and the penalty imposed is within the provisions of the statute.
“Mr. Huseby: I didn’t quite understand.
“The Court: If he admits these charges that are made here and is sentenced upon this information, that precludes a sentence upon the conviction for first degree rape, provided that the court has proper jurisdiction of this proceeding and that the sentence imposed is within the limits prescribed by the law; in other words, he is sentenced now upon this, if he admits it, rather than upon the rape charge, but I simply informed him that the maximum penalty under either is the same.”
The question of petitioner’s counsel shows clearly that he was under the impression that the sentence under discussion was one that would be imposed upon the charge made in the information accusing the petitioner of conviction of three or more felonies prior to his conviction for rape on January 7, 1948. He desired to know what the effect would be if such sentence were imposed, whether there “could be a later sentence on the charge to which he has been found guilty of first degree rape?” If as the majority members hold the judge intended to sentence the defendant upon the verdict of guilty of rape in the first degree, there was a simple and direct answer to the question that would naturally have presented itself to the judge, to-wit: “If the defendant admits the charges in the information of former conviction of three or more felonies prior to his conviction of rape, I will sentence the defendant on the conviction of rape now, so naturally there will be no later sentence for rape.” The court did not state or even intimate that he would sentence the petitioner for rape. His answer was to the contrary. He said: “If he admits these charges that are made here and is sentenced upon this information, that precludes a sentence upon the conviction fdr first degree rape.” The court further said,' “in other words, he is sentenced now upon this, if he admits it, rather than upon the rape charge, but I simply informed him that the maximum penalty under either is the same.” The court doubtless *177chose his words with care. Precludes means “to render impossible or ineffectual by antecedent action; prevent.” Punk & Wagnalls New Standard Dictionary of the English Language. The statements of the trial judge were clear and positive. Is it believable the trial judge notwithstanding his specific statements had a secret intention to pronounce sentence upon the petitioner for the crime of rape in the first degree? The answer, I think, is obvious. As is well said by Judge Burke in his dissenting opinion: “As I construe the trial judge’s language it is consistent with what he said he proposed to do, with what he thereafter said he had done and with what the minutes of the clerk show he did. It is also inconsistent with any conclusion that at the time he sentenced the petitioner for the crime of ‘conviction of three or more felonies prior to his conviction of rape in the first degree,’ he also sentenced him upon the conviction of rape in the first degree.”
Immediately before the sentence was imposed the state’s attorney in his statement to the court said, in part: “Leaving out of consideration his prior record, in view of the brutality of the evidence in the rape case, and (if) we had not had this prosecution, when the time came for sentencing in the rape case 1 would have recommended to the court that the defendant be imprisoned for life.” He concluded his statement by saying: “Therefore, your honor, in this case, under the habitual criminal act, that is, for the conviction of three or more felonies, it is the recommendation, my recommendation, that the defendant be imprisoned for life.” What the state’s attorney said shows clearly that he considered the matter before the court was the imposition of sentence upon the petitioner in the case “under the habitual criminal act, that is, for the conviction of three or more felonies,” and that he had no idea that a sentence would be pronounced upon the verdict for rape in the first degree.
In view of what was said and done by the trial court in this case I am wholly at a loss to understand how it can be seriously contended that the petitioner was not sentenced for the alleged offense stated in the second information but was sentenced for the crime of rape.
*178I agree with Judge Burke, that the record in this case “shows, beyond any question that the judgment of conviction was pronounced against the petitioner upon an information which charged him with the ‘crime of conviction of three or more felonies prior to his conviction of rape in the first degree,’ and upon such information alone.” And that it “is apparent upon the face of this record that both the state’s attorney.and the trial judge considered that the information filed under the habitual criminal statute charged .a new crime and that the trial judge sentenced the petitioner for that alleged crime. The attorney for the defendant and the defendant, likewise, so understood the proceedings for the trial judge assured them that such was their nature.”
I also agree with Judge Burke that the sentence and judgment are void. They were pronounced upon a plea of guilty to an information which did not charge or show the commission of a crime, but merely stated facts under which one found guilty of a specific offense in a separate criminal action may be more severely penalized because of previous convictions of a felony. Ex Parte Wray, supra; Ryan v. Nygaard, supra; Ex Parte Cress, 13 Wash2d 7, 123 P2d 767; Black v. Mahoney, 9 Wash2d 110, 113 P2d 1028 ; In Re Towne, 14 Wash2d 633, 129 P2d 230. The judgment or sentence set forth as part of. the return of the warden as his authority for- retaining the petitioner in custody shows that the petitioner is held in the custody of the warden under a void sentence and judgment, and hence that there is no authority in law for his restraint by the warden. NDRC 1943, 32-2217 (3, 4). However, the petitioner is not entitled to be released. At the time the petitioner was sentenced he was in the custody of the.Sheriff of Cass County and incarcerated in the county jail pursuant to a prosecution on the charge of rape in the first degree and the verdict of guilty that had been returned against him in that case. He was being so held when the sentence was pronounced and the certified copy of the sentence and judgment delivered to the sheriff and by him in turn delivered to the warden of the State Penitentiary when he delivered the petitioner to the warden. Therefore, the defend*179ant should not be released but" should be delivered into the custody of the Sheriff of Cass County and thereupon the district court should, and, of course, will perform its duty and pronounce sentence upon him pursuant to the verdict that was returned against him in the criminal case in which he was. convicted of rape in the first degree. Such procedure is provided for by our statutes (NDRC 1943, 32-2218) and has been followed in other jurisdictions. Blake v. Mahoney, supra; In Re Cress, supra; and In Re Towne, supra.