
    No. 43,436
    James Jacob Stubbs, Petitioner, v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, Respondent.
    
    (386 P. 2d 227)
    Opinion filed November 2, 1963.
    Petitioner was on the briefs pro se.
    
    
      Arthur E. Palmer, assistant attorney general, argued the cause and William M. Ferguson, attorney general, was with him on the briefs for the respondent.
   The opinion of the court was delivered by

Jackson, J.:

This is an original petition in habeas corpus and comes under our constitutional grant of authority to entertain the

original petition (Constitution of Kansas, art. 3, § 3).

The case has been here on an ordinary appeal in State v. Stubbs, 186 Kan. 266, 349 P. 2d 936. Petitioner took the above appeal himself, and much the same matters were argued in that appeal as are now posed. Petitioner was convicted of the crime of murder in the second degree and while on the stand as a witness, he testified he had been previously convicted of a felony on two different occasions. Second degree murder is governed by G. S. 1949, 21-402, and the habitual criminal statute is G. S. 1949, 21-107a.

Petitioner argues that the habitual criminal statute should not have been employed because no mention was made of it in the information. That is not the test which we employ in Kansas. If, at the time he is sentenced, it is established from the record and other competent evidence that the defendant is an habitual criminal, it will be held valid. That is, the fact of his former convictions must be brought out and defendant must be aware of the facts.

The opinion in State v. Stubbs, supra, gives the details of his fight with Harned. The written statement was admitted in evidence after the court had fully considered the problem.

On page 270, we find the statements concerning the two former felonies which were admitted by defendant and now that defendant is convicted of a third felony, he is subject to being sentenced under the habitual criminal statute, G. S. 1949, 21-107a.

Stubbs seems hazy about the happenings the night of the murder, due to the influence of alcohol and a blow on his head. However, the evidence at the trial left no doubt that he had a fight with Plarned using a knife, resulting in Harned’s death.

This is a proceeding in habeas corpus but the case of State v. Stubbs, supra, was an appeal from the criminal case. He was represented by capable counsel for the trial of the case, although he had no counsel on the appeal. However, a judgment in the criminal case is more completely final than a mere habeas corpus decision.

We believe the opinion in State v. Stubbs, supra, covers all. the questions in this case. The petition for a writ of habeas corpus is denied.  