150 W. Va. 1 | W. Va. | 1965
Lead Opinion
The petitioner, Harold Edward Smith, an inmate of the West Virginia Penitentiary, invoked the original jurisdiction of this Court by filing a petition herein praying for a writ of habeas corpus. The writ was granted returnable July 6, 1965. The defendant filed a demurrer and return and upon motion of counsel for the petitioner, the case was continued to July 13, 1965, at which time it was submitted for decision upon arguments and briefs.
Three felony indictments were returned against the petitioner in Morgan County, West Virginia, in 1954. He was arraigned in the Circuit Court of said county on September 7, 1954, and pleaded not guilty to each indictment. A trial was had on one of the indictments on September 14, 1954, and a verdict of guilty as charged was returned by the jury. On September 15, 1954, the petitioner again appeared before the court with his attorney and was sentenced to the State Penitentiary for an indeterminate term of from one to ten years, and upon information by the prosecuting attorney of a prior conviction in the State of Pennsylvania, which he admitted in open court, an additional five years was added to his sentence under the provisions of the recidivist statute, Code, 61-11-18, as amended.
It is the contention of the petitioner that the information was not filed and that he was not “duly cautioned”, all of
The return to the writ filed by the defendant avers that the petitioner is legally confined in the West Virginia Penitentiary, pursuant to the judgment rendered by a court of competent jurisdiction; that the judgment is valid on its face; and that a valid commitment was issued under the judgment.
The only exhibits filed by the petitioner and the defendant are certified copies of the orders of the court in connection with the matters involved herein. Four affidavits were attached to the brief filed by counsel for the petitioner after the granting of the continuance requested in this case. These affidavits do not meet the requirements of Code, 53-4-6, and Rule IX, Section 2 of this Court promulgated in 1934, 114 W. Va. lxxv, with regard to the use of affidavits in habeas corpus and other proceedings in this Court. However, even if the affidavits are considered on the issues, they are not sufficient to warrant the granting of the relief prayed for in this case.
Two of the affidavits are from the petitioner’s mother and father and they are practically the same. They merely state that the judge did not caution their son about his plea of guilty or advise him of his constitutional rights; that everything happened so fast and was over before they knew it; also, that they did not understand what happened. The affidavit from his attorney at the trial stated that he didn’t recall whether or not the court advised the petitioner of his right to a hearing to determine if he was the individual involved in the prior conviction. He also stated in his affidavit that the prosecutor filed an information alleging that the accused had previously been convicted of a felony in another state. Although the petition only states the conclusion of not being “duly cautioned”, the affidavit of the petitioner does contain certain facts indicating that he was not duly cautioned, such as that he was not told that he would be given an additional sentence of five years before he acknowledged the previous convictions.
There is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law, with the exception of the fundamental constitutional right of assistance of counsel which is specifically provided for in both the State and Federal Constitutions. 15 R.C.L., Judgments, Section 373; State ex rel. Massey v. Boles, Warden, 149 W. Va. 292, 140 S. E. 2d 608; State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S. E. 2d 634; State ex rel. Powers v. Boles, 149 W. Va. 6, 138 S. E. 2d 159.
This case is governed by the Massey case cited above in which the same issue was raised; and it was held that where the record was silent with regard to duly cautioning an accused when an information was filed alleging prior convictions, it would be presumed that the court performed its duty as required by the recidivist statute. Code, 61-11-19, as amended. This presumption cannot be rebutted by conclusions in the pleadings or otherwise. 39 C.J.S., Section 80, page 627; State ex rel. Massey v. Boles, Warden, supra; 7 M. J., Evidence, Section 179; Clay v. Walkup, 144 W. Va. 249, 107 S. E. 2d 498.
It is the petitioner’s contention that he has overcome the presumption of regularity of court proceedings by virtue
The recent case of Hooker v. Boles, Warden, _ F. 2d _, (decided May 31, 1965), also relied on by the petitioner to support his contention with regard to not being duly cautioned, is quite different from the case at bar. In that case a hearing was held in the Federal District Court and from the evidence introduced at the hearing it affirmatively appeared that the petitioner had not been “duly cautioned” by the trial court as required by the recidivist statute. Code, 61-11-19, as amended.
The petitioner must prove by a preponderance of the evidence that he was not “duly cautioned.”, in order to rebut the presumption in such cases. 39 C.J.S., Habeas Corpus, Section 100, page 674; Walker v. Johnson, 312 U. S. 275. This he has failed to do in the case at bar.
For the reasons stated herein, the petitioner is not entitled to release from confinement as alleged in his petition and he is therefore remanded to the custody of the defendant.
Prisoner remanded.
Dissenting Opinion
dissenting:
Very respectfully I dissent from the Court’s holding embodied in the majority opinion.
I believe that the prisoner has made a prima facie case in his habeas corpus petition which is supported by his oath; and that the Court has erred in remanding the prisoner without affording him an opportunity to prove his case, if additional proof is deemed necessary. “Assuming that the allegations of a petition for a writ state a case that will entitle the petitioner to a discharge, if proved, the court cannot refuse to hear competent and relevant evidence upon the issues raised by the pleadings.” 25 Am. Jur., Habeas Corpus, Section 151, pages 247-48.
A habeas corpus proceeding is a civil proceeding. It is commonly used in this state to test the legality of one’s restraint as a consequence of criminal proceedings, to determine the right to custody of minor children or to test the legality of a restraint imposed upon one as a consequence of lunacy proceedings. Habeas corpus proceedings, by R.C.P. 81(a) (5), are excluded from the operation of the Rules of Civil Procedure; but I believe that such proceedings otherwise, generally speaking, are governed by the usual principles applicable to pleading and proof in civil cases.
The procedure in habeas corpus in this state is provided for by Article 4 of Chapter 53 of Code, 1931. Our procedure is in this respect sui generis and, therefore, in relation to purely procedural matters, decisions of appellate courts of other jurisdictions are of limited value to us. Our statutory procedure is quite simple and clearly defined.
Section 1 provides that the writ “shall be granted forthwith * * * to any person who shall, by himself or by some one in his behalf, apply for the same by petition, showing by affidavit or other evidence probable cause to believe that he is detained without lawful authority.” Section 7 provides that the court or judge, “after hearing the matter both upon the return and any other evidence, shall either
The habeas corpus petition in this case specifically alleges that the judge of the Circuit Court of Morgan County failed to “duly caution” the prisoner as required by Code, 1931, 61-11-19, as amended, before the prisoner was required to answer whether he was the same person who had been previously convicted of a felony as alleged in the information. The prisoner asserts that, therefore, the trial court lacked “jurisdiction” to add five years to the sentence under the habitual criminal statute; that he has served the maximum sentence provided by law for the principal offense; and that, therefore, he is entitled to be discharged by habeas corpus from further imprisonment.
The allegations of the petition are verified by the affidavit of the prisoner. In my judgment, the prisoner has thereby made a -prima facie showing, exactly the same type of showing we accept regularly in the numerous “assistance of counsel” cases. These allegations do not contradict the court records or orders, because the trial court records are silent in relation to the question whether the prisoner was duly cautioned. Additional affidavits by other persons were submitted by the prisoner, as was stated in the majority opinion.
What showing was made to the contrary to afford basis for the majority opinion? A demurrer to the petition was filed in behalf of the respondent which states a rather singular proposition as follows: “It does not affirmatively appear from the record of petitioner’s trial that the trial court did not fully comply with the provisions of Code, 61-11-19 by failing to duly caution him.” (Italics supplied.)
A verified answer to the habeas corpus petition also was filed in behalf of the respondent. It contains no specific denial of the factual allegation of the petition that the court did not duly caution the prisoner. It does not allege affirmatively that the prisoner was duly cautioned. The distinguished assistant to the attorney general who appeared before the Court in behalf of the respondent has
Habitual criminal statutes are generally held to be highly penal, in derogation of common law, to' be strictly construed against the prosecution and not to be extended to embrace cases not falling clearly within the statutory provisions. 24B C.J.S., Criminal Law, Section 1959, page 438. This Court has held, in line with general principles pertaining to pleadings in civil cases, that, in a habeas corpus proceeding, the facts essential to permit further detention of the prisoner must, in substance, be alleged in the return and that otherwise the prisoner must be discharged. State v. Reuff, 29 W. Va. 751, 763, 2 S. E. 801, 807; State ex rel. Vizziri v. Lowe, 103 W. Va. 266, 137 S. E. 10. “The refusal of the respondent to tender an issue as to a specified matter dispenses with the necessity of proof thereon.” 39 C.J.S., Habeas Corpus, Section 97, page 663.
It is true that there is, as a general rule, a presumption of the regularity of proceedings of courts of general jurisdiction but, upon a record silent as to such matters, the presumption is not conclusive but rather it is rebuttable. Here the prisoner has, in my judgment, submitted the only specific, legally sufficient allegation and the only proof on the “duly cautioned” requirement; and yet he is remanded to prison. Even if it be conceded that the allegations of the answer are sufficient to present an issue of fact; and even
I am troubled by the sweeping, unqualified statements in the majority opinion concerning the scope, nature and general application of the presumption of regularity of court proceedings and the presumption of jurisdictional prerequisites. First, it must be conceded that, upon a silent record, such presumptions are rebuttable. While, as the majority opinion states, the presumption of regularity does not obtain on a silent record as to the constitutional right to assistance of counsel; still the prisoner in such circumstances may prove that, as a matter of fact, he was denied his constitutional right in that respect.
Generally speaking, jurisdiction (aside from such matters as territorial jurisdiction) consists of two elements— jurisdiction of the person and jurisdiction of the subject matter. These same general principles apply to both civil and criminal cases. In cases of trials for criminal law violations, jurisdiction of the subject matter is obtained by the warrant, indictment, presentment or information which charges the crime. Jurisdiction of the person is obtained by the presence of the accused in court to answer the charge. State ex rel. Hinkle v Skeen, 138 W. Va. 116, 123-24, 75 S. E. 2d 223, 227; 22 C.J.S., Criminal Law, Section 143, page 379, and Section 144, page 381.
Courts of record exercising jurisdiction in criminal cases are given jurisdiction in relation to habitual criminal pro
There can be no question in this case of the trial court’s jurisdiction of the person of the prisoner in the habitual criminal proceeding. I readily recognize that a proper information in writing is essential to a trial court’s jurisdiction of the subject matter in such a proceeding; and that the court loses its jurisdiction of the subject matter under the information unless, before sentence is imposed for the principal offense and before the expiration of the term at which the prisoner was convicted, the court shall cause the prisoner to be brought before it and require him to say whether he is or is not the same person who was convicted of the prior felony or felonies as charged in the information. The court, as I read the statute, is required to duly caution the prisoner only before he acknowledges in open court that he is the same person. As I understand the statute, the court is not required to duly caution the prisoner upon a jury trial of the issue whether he is the same person charged in the information; and this tends to substantiate the proposition that the “duly cautioned” provision is not
Having obtained jurisdiction of the person and of the subject matter in a habitual criminal proceeding, the criminal court may he remiss in performance of duties imposed upon it by law and such errors may require reversal on appeal; but it does not follow that failure to perform duties of a procedural nature constitutes a jurisdictional omission of such nature as to render the proceeding void and subject to collateral attack. Jurisdiction embraces the right to decide incorrectly as well as correctly; to act unlawfully as well as lawfully; and to commit error, even of a prejudicial, reversible nature. These principles were so well illustrated in the final decision in Aldrich v. Aldrich, 147 W. Va. 269, 127 S. E. 2d 385, 163 So. 2d 276 (Fla.), 378 U. S. 540, 84 S. Ct. 1687, 12 L. Ed. 2d 1020. That case illustrates the distinction between jurisdiction of a court as distinguished from its power, right, authority or duty or lack thereof in the exercise of jurisdiction. For reasons stated, I believe the Court is in error in holding that the “duly cautioned” provision is jurisdictional and that the Court, in habeas corpus proceedings, is in error in releasing a flood of prisoners from the penitentiary on the basis of that untenable legal proposition.
Inasmuch as the Court has held in several cases that, even though a court has jurisdiction of the person and of the subject matter in a habitual criminal proceeding, the proceeding may be adjudged to be void and subject to collateral attack because of the manner in which the court procedurally exercises that jurisdiction, I believe additional complications arise in relation to the presumption of regularity of court proceedings. It is not clear to me, but I assume that these decisions dealing with the “duly cautioned” provision of the statute imply that such procedural matter relates to jurisdiction of the subject matter.
This Court has held that jurisdiction, as it relates either to parties or to subject matter, “must affirmatively appear from the record.” Dixon et al. v. Hesper Coal & Coke Co.
My understanding is that, in our numerous cases in which we have held convictions to be void and subject to collateral attack because of denial of assistance of counsel, we have recognized mandatory constitutional duties on the part of the sentencing court, and that failure of performance of such mandatory duties constitutes a denial of due process of law which, under recent decisions of federal courts, may cause a conviction to be void; but I do not understand that any court has held such matters to be “jurisdictional.” The “duly cautioned” provision, however, is merely statutory rather than a “fundamental right” or constitutional right, as is the right to assistance of counsel.
The sweeping language of the syllabus in the majority opinion is not confined to any single type of courts, and it makes no qualification of the presumption of regularity as it may relate to the type of proceeding. “The rule as to presumptions regarding the jurisdiction of courts of general jurisdiction is different with respect to courts of special or limited authority. Their jurisdiction must affirmatively appear by sufficient evidence or a proper averment in the record, otherwise their judgments will be deemed void on their face.” (Italics supplied.) 11 M. J., Jurisdiction, Section 27, page 451. “The jurisdiction of a court of limited jurisdiction will not be presumed, unless the jurisdictional facts affirmatively appear from the record, but it is within the constitutional power of the Legislature to change this rule.” Slater v. Melton et al., 119 W. Va. 259, pt. 2 syl., 193 S. E. 185. To the same effect, see Boone et al. v. Boone et al., 123 W. Va. 696, 703, 17 S. E. 2d 790, 794. “The jurisdictional
It is true that the habitual criminal proceedings in this case were in a circuit court, which is a constitutional court of general jurisdiction. Even in case of a court of general jurisdiction, however, when it is exercising a jurisdiction which is purely statutory as distinguished from an inherent or common law jurisdiction, such jurisdiction cannot be presumed but must appear affirmatively from the court record. Cruikshank et al. v. Duffield et al., 138 W. Va. 726, 735, 77 S. E. 2d 600, 605; Davis v. Town of Point Pleasant, 32 W. Va. 289, 293-94, 9 S. E. 228, 230; Mayer v. Adams, 27 W. Va. 244, 252; Blankenship v. Blankenship, 125 Va. 595, 100 S. E. 538; 22 C.J.S., Criminal Law, Section 159, page 414; 21 C.J.S., Courts, Section 96c, pages 151-152. The circuit court in this case, in the habitual criminal proceeding, was not exercising a common law or an inherent jurisdiction but rather one created and regulated wholly by statute. The circuit court’s jurisdiction, therefore, cannot be presumed from a silent record. Rather, in order that its actions may be regarded as valid, jurisdictional prerequisites must affirmatively appear from the record. For this reason, it cannot be presumed that an information in -writing was before the court; and if the requirement that the court duly caution the prisoner is jurisdictional (which I do not be
Concurrence Opinion
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
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
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
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.
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
. 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
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
In my judgment the decision of the majority in this proceeding is clearly right and is in all respects fully sustained
Concurrence Opinion
concurring:
I am in agreement with the majority of this Court to deny the petitioner the relief sought and remand him to the penitentiary. However, I am not wholly in agreement with the single syllabus point, the majority opinion, the dissenting opinion or the separate concurring opinion, which were filed in the clerk’s office in that order. There is no question in this case relative to counsel; therefore it is not controlled by Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733, and State ex rel. May v. Boles, Warden, 149 W. Va. 155, 139 S. E. 2d 177. It is good, in my opinion, that what appeared to be a routine habeas corpus proceeding has resulted in four opinions by this Court and I trust that all that is said in these opinions will reorient this Court upon the issues created by the Gideon case, which has resulted in a deluge of habeas corpus proceedings in this Court. No one knows everything about anything, including habeas corpus, jurisdiction, presumptions, either of the rebuttable or irrebuttable type, and I am not writing this opinion for the purpose of proving, even if I could, that I am right and some or all of the other judges are wrong. However, it is time, I believe, that we review our decisions and, if there are inconsistencies in them, that we return to the fundamentals and, if necessary, overrule any such decisions, so that the judiciary and the bar of this state might know the position of this Court upon the issues presented therein. There is no question in the principal case but that the petitioner had an attorney at his trial; that he entered a plea of not guilty of the principal offense; that he was convicted by a jury of one of the felonies charged against him; that the prosecuting attorney in due time filed an information reciting that the prisoner had theretofore been convicted of a felony; and that the trial court pursuant to the applicable statute sentenced the prisoner to serve a term of one to fifteen years, five years of which having been imposed because of the previous felony conviction. The only question then which arises in this
This is the second syllabus point in State v. Tinovits, 72 W. Va. 531, 78 S. E. 664: “The record of a court having jurisdiction of the parties and of the subject matter, and the facts recited therein upon which final judgment was pronounced, cannot, after the end of the term, be impeached by certificates of court officers or ex parte affidavits of the parties.” In that case this Court held that the final judgment order of a trial court was “a verity” and that it could not be attacked even by a certificate of the judge who presided at the hearing. This sentence would certainly leave no room for doubt as to how this and several other pertinent cases should be or should have been decided: “We do not think the affidavit or certificate of the judge himself can be received for this purpose, certainly not in an appellate court.” As authority for that holding this Court cited Braden v. Reitzenberger, 18 W. Va. 286; State v. Vest, 21 W. Va. 796; Bank v. Houston, 66 W. Va. 336, 66 S. E. 465. Perhaps in the clearest and most unambiguous language Judge Ritz in Lemley v. Coal & Coke Co., 82 W. Va. 153, 95 S. E. 646, has laid down the rule by which we are bound ■unless we overrule many decisions of this Court. He said: “Can the finding of the circiut court, as shown by its decree as above recited, be questioned in this way? This is not a bill to review the proceeding had for the sale of this interest, nor is it a direct attack upon said proceeding, but it proceeds entirely upon the theory that the circuit court ob
Habeas: corpus is a civil proceeding and is, with the exception' of the question of counsel, not to be distinguished from any other civil action as far as procedure and substantive law are concerned, whether the judgment assailed was rendered in a civil or criminal cause. Frankly, I thought that we had long ago firmly laid down a rule with regard to a silent record, attacked in this Court, in a habeas corpus proceeding. This is the first syllabus point of State ex rel. Lovejoy v. Skeen, Warden, 138 W. Va. 901, 78 S. E. 2d 456: “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.” It is not enough that the judgment of a court of record be silent upon a jurisdictional question; such want of jurisdiction must affirmatively appear to rebut the strong presumption of validity. This is the first syllabus point of Wandling v. Straw & Morton, 25 W. Va. 692: “The validity of a judgment of a court of record can not be collaterally attacked, on the ground that
“The Circuit Court of Logan County failed to show by its order that the requirements of Chapter 31 id., as above quoted, were met. The failure of the court to show by such order the procedure outlined above may have been erroneous. We do not decide that question. We are of opinion however, that the failure to obey the terms of Chapter 31 id., does not render the judgment of the Circuit Court of Logan County, sentencing the petitioner to life imprisonment, void. Trial courts should be careful to obey the mandate of applicable statutes in such grave matters as sentencing a person to life imprisonment.
“In absence of a showing otherwise, we assume that the Circuit Court of Logan County followed the statute in pronouncing sentence, but omitted through inadvertence, a statement of such action.”
In the opinion in the Lovejoy case the Court cited and relied upon Ex Parte Evans, 42 W. Va. 242, 44 S. E. 888, and Ex parte Mooney, 26 W. Va. 36. The rule laid down in the Lovejoy case was reaffirmed by this Court in State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740, but the Court distinguished the Browning case from the Lovejoy case upon the facts, although I was unable to make such distinction as will be shown by my dissenting opinion in that case. This statement appears in the majority opinion of the Browning case: “When the record of a court of general jurisdiction is merely silent with respect to a matter affecting its jurisdiction, the presumption that it satisfied and complied with all jurisdictional requirements for the entry of a valid judgment will be accorded prevailing force and effect.”, citing decisions of this Court in support thereof.
“When the record of a court of general jurisdiction is merely silent with respect to a matter affecting its jurisdiction or the regularity of its procedure, 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.” Syl. Pt. 11.
“A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and 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.” Syl. Pt. 13.
Many decisions of this Court are cited in support of those points. Certain it is that the requirement of the recidivist statute is either “jurisdictional” or “procedural”. Therefore, it is not clear to me why in the majority opinion and in the concurring opinion such statements as “the affidavits fall short of the proof required to overcome affirmatively the strong presumption of regularity and requirements for consideration in such cases” or “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.” appear. It is true that in the majority opinion and in the concurring opinion the primary reason for denying the writ is stated, but I would have stopped there and said nothing about permitting evidence to rebut the language of the judgment order or the material recitals thereof as to which the order is silent in view of the presumption as shown by many cases herein cited. To do so is misleading to attorneys and trial judges who may be bound by the precedents of this Court.
Strangely enough, none of the opinions in the Lovejoy, Browning or Pyles cases refers to the decision of this Court in State ex rel. Hall v. Skeen, decided January 29, 1952, 136 W. Va. 805, 68 S. E. 2d 683, although it was decided less than two years before the Lovejoy case. Nor can I find the
In the majority opinion the decisions of this Court in State ex rel. McClure v. Boles, Warden, 149 W. Va. 599, 142 S. E. 2d 773, and State ex rel. Beckett v. Boles, Warden, 149 W. Va. 112, 138 S. E. 2d 851, are cited in support thereof. It is my opinion, in retrospect, that both of those decisions are palpably erroneous, in that we therein reverted to the rule of the Hall case, and cannot be reconciled with the other decisions of this Court that neither a judgment which is clear and conclusive in its recital of essential facts nor one which is silent thereon can be impeached by collateral at
There are several other cases decided by this Court which I have not referred to herein including, but by no means limited to, State ex rel. Mounts v. Boles, 147 W. Va. 152, 126 S. E. 2d 393; State ex rel. Post v. Boles, 147 W. Va. 26, 124 S. E. 2d 697; State ex rel. Cox v. Boles, 146 W. Va. 392, 120 S. E. 2d 707; State ex rel. Favors v. Tucker, 143 W. Va. 130, 100 S. E. 2d 411; Brouzas v. City of Morgantown, 144 W. Va. 1, 106 S. E. 2d 244, which point up the inconsistent positions adopted by this Court with regard to collateral attacks upon a judgment and, while I am firmly of the opinion that the better course would be to conform to the principle of the Lovejoy, Browning and Pyles cases, and the others consistent therewith, I believe that in the interests of fairness, justice and consistency we should adopt a definite rule, overruling any inconsistent cases and thereafter adhere to it to the end that one person may not be confined to the penitentiary while another goes free in analogous circumstances.
While not attempting to evade my own responsibility in the matter, I am of the opinion that considerable confusion has resulted from the decisions of this Court in habeas corpus proceedings because of the use, for lack of a more precise
There are two kinds of error that a trial court may commit: (a) those that are irregular, and (b) those that are illegal. Judge Brannon in the opinion in Ex parte Evans,
Let me succinctly recapitulate my views upon the issues discussed in the other three opinions. Jurisdiction is conferred upon the courts of this state by the constitution, acts of the legislature, many of which acts as to civil jurisdiction being cited under the editorial note to Rule 1, Lugar and Silverstein, Rules of Civil Procedure for Trial Courts, adopted and promulgated by this Court, and the common law insofar as it has not been changed by statute; the recidivist statute, Code, 61-11-18, 19, as amended, is a highly penal act that comes close indeed to being violative of the double jeopardy and due process clauses of the constitution of this state and of the United States and should be strictly construed against the state and in favor of the defendant;
Therefore, if a habeas corpus proceeding in this Court to attack the validity of a judgment of a trial court is a collateral proceeding, which I believe it to be, and as this Court has many times so held, and if in a collateral attack in an appellate court there is a presumption of validity of the judgment attacked and evidence de hors the record cannot be used for such purpose, then this Court has been in error in all of the decisions it has made in habeas corpus proceedings wherein the petitioner was discharged, except in those cases in which the validity of the judgment of the trial court was contradicted by other parts of the record. These applicable basic principles were not changed by Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A. L. R. 2d 733; or by State ex rel. May v. Boles, 149 W. Va. 155, 139 S. E. 2d 177, and I would overrule all such cases including the May case in which it was necessary to obtain evidence de hors the record to invalidate the judgment attacked. IF THE COURT REFUSES TO FOLLOW THAT COURSE, THEN THE LEAST IT CAN DO IS OVERRULE ALL OF ITS DECISIONS HOLDING THAT A HABEAS CORPUS PROCEEDING IN THIS COURT IS A COLLATERAL ATTACK AND FIND THAT SUCH IS A DIRECT ATTACK THEREON.