149 W. Va. 334 | W. Va. | 1965
This is an original habeas corpus proceeding instituted in this Court on December 11, 1964, in which the petitioner, Aubrey Duncan, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from the penitentiary where he is presently confined under a sentence of imprisonment for an indeterminate term of not less than one year or more than ten years imposed by the Criminal Court of Mercer County, West Virginia, on August 13, 1962.
Upon the filing of the petition this Court issued a writ returnable February 16, 1965 and appointed counsel to represent the petitioner in this proceeding. Upon the return day of the writ, by agreement of counsel representing the respective parties and by leave of this Court, this proceeding was continued until March 2, 1965, at which time the defendant produced the petitioner in court as commanded by the writ and filed his demurrer and his answer with its exhibits to the petition, and this proceeding was heard and
On July 2, during the regular term of the Criminal Court of Mercer County, the petitioner was jointly indicted with two other persons for the crime of breaking and entering a certain storehouse and on July 26, 1962 the petitioner was set to the bar of the court in the custody of the sheriff and the proceeding was set for trial on August 13, 1962. At that time the petitioner, by his attorney, moved the court that he be permitted to be present at any examination of one of the co-defendants by the prosecuting attorney, which motion was overruled by the court and the petitioner was remanded to jail. On August 13, 1962, the petitioner again appeared in court in the custody of the sheriff and the court explained to the petitioner his constitutional rights with respect to a trial by a jury and the consequences which would result from the entry of a plea of guilty. The petitioner then entered a plea of guilty to the offense charged against him in the indictment and the court, having found the petitioner to be guilty of the offense of breaking and entering as alleged in the indictment, sentenced the petitioner to be confined in the penitentiary of this State for the indeterminate term of one year to ten years and by a written instrument signed by the court on that day, which recites the appearance of the petitioner in person and by his attorney, the petitioner was committed to the penitentiary to serve the sentence of imprisonment imposed by the court, subject to a credit of twenty two days allowed by the judgment order of August 13, 1962 and an additional credit of 157 days allowed by a subsequent order entered September 4, 1962.
The record of the proceeding in the Criminal Court of Mercer County, in which the petitioner was convicted upon his plea of guilty and sentenced to confinement in the penitentiary, consists of copies of the indictment and the orders entered by the court on July 26, August 13, and September 4, 1962.
Each of the foregoing contentions is devoid of merit.
Contrary to the contention of the petitioner, the record discloses that he was not denied his constitutional right to the assistance of counsel to defend him against the offense charged in the indictment. The order of July 26,1962, when the petitioner was first brought into court shows that he was represented by counsel who then appeared in court and made a motion in behalf of the petitioner. Though the order of August 13, 1962 when sentence was imposed makes no mention of the presence of counsel for the petitioner, this may well have been an inadvertent omission and there is nothing to indicate that the attorney who appeared in behalf of the petitioner on July 26, 1962 had ceased to represent him in the case. That he did not discontinue his services as counsel is indicated by the written commitment signed by the court on August 13, 1962, the same date that the judgment order was entered, which recites that the defendant appeared in person and by counsel at the time the commitment was signed by the judge. Though the commitment is not a judgment order its recitals constitute evidence to show the proceedings had in ordering the commitment of the petitioner to serve the sentence imposed by the judg-
In support of his contention that he was denied the assistance of counsel after his arrest and while in the custody of the arresting officers or confined in jail before his arraignment in court on July 26, 1962, the petitioner cites and relies upon the recent decision of the Supreme Court of the United States in Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, in which, on certiorari, the court reversed a conviction of the defendant and held inadmissible certain incriminating statements made by the defendant in that case while being interrogated by police officers who refused to permit the defendant to consult his attorney who had been provided to represent him and who was nearby and readily accessible. The court stated that in that situation the accused was denied his constitutional right to the assistance of counsel. The holding of the court, upon the facts in that case, as set forth in the opinion, is couched in this language: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 US, at 342, 9 L ed 2d at 804, 93 ALR 2d 733, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The facts in the case at bar clearly distinguish
The failure of the judge of the trial court to sign the paper on which the original draft of the order was written, which appears to have been what happened in this case, did not make the order as entered in the official order book and record of the court an unsigned order. Section 4, Article 3, Chapter 51, Code, 1931, as amended, in effect when the judgment of the trial court was entered, specifies the manner in which court orders are signed or authenticated and provides, to the extent here pertinent, that the law proceedings of every court shall be entered in a book and, in the discretion of the court, may be caused to be read, and that after being corrected, where necessary, shall be signed by the judge or presiding officer on the following day, except those orders of the last day of the term and of the day
As the petitioner was convicted and sentenced by the Criminal Court of Mercer County in the exercise of its jurisdiction and as the judgment is in all respects regular and valid on its face, it will not be reviewed or disturbed in this habeas corpus proceeding. 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 that case 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 hab-eas corpus.”
For the reasons stated the writ heretofore awarded is discharged and the petitioner is remanded to the custody of the defendant.
Prisoner remanded.