Doolin v. Gladden

PER CURIAM. This was a post conviction proceeding. The trial court sustained a demurrer to the first five causes of action in plaintiff’s petition and found for defend [353] ant on issues of fact presented by the sixth cause and defendant’s answer thereto. Petitioner challenged the habitual criminal proceedings by which he was sentenced in 1942 and by which he is still confined. Petitioner had been found guilty of assault with intent to rob. He now claims that since he could have been sentenced to life imprisonment upon conviction of that charge that he was not subject to the Habitual Criminal Act as it then existed. He also complains that the court of original sentence imposed sentence upon him as an habitual criminal without first sentencing him for the crime for which he had been convicted. We have examined these and plaintiff’s other contentions and find no merit to any of them. This court has, in former decisions, ruled on the issues of law presented by the demurrer to the petition. See State v. Smith, 1929, 128 Or 515, 273 P 323, 343; State v. Durham, 1945, 177 Or 574, 164 P2d 448, 162 ALR 422; Smallman v. Gladden, 1956, 206 Or 262, 291 P2d 749. The evidence supports the trial court’s findings on the one issue of fact. Affirmed.