Boles v. Kershner
| Decision Date | 29 June 1963 |
| Docket Number | No. 8984.,8984. |
| Citation | 320 F.2d 284 |
| Parties | Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellant, v. John M. KERSHNER, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Andrew J. Goodwin, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellant.
George N. Caravasios, Wheeling, W. Va. (Court-assigned counsel), for appellee.
Before BOREMAN and BRYAN, Circuit Judges, and WINTER, District Judge.
While the law of West Virginia does not require a transcript of trial proceedings as a condition precedent to exercise of the right to appeal, as a practical matter, a convicted layman cannot effectively prosecute an appeal without one. Michie's West Virginia Code (1961 Ed.) § 5251 (1); Chap. 51, Art. 7, § 7 of the Code of West Virginia (1931 Ed., as amended), provides that an indigent defendant desiring to appeal may obtain a transcript of proceedings, without charge, upon written application of his Court-appointed counsel. Although couched in terms of a request by Court-appointed counsel, the West Virginia Supreme Court has construed this free transcript statute to be equally applicable to indigent defendants, whether they are or are not represented by Court-appointed counsel, Linger v. Jennings, 143 W. Va. 57, 99 S.E.2d 740 (1957).
The district judge, finding that appellee, who was convicted in March, 1959, of grand larceny and sentenced as a recidivist to a term of from one to fifteen years in the State Penitentiary, desired to appeal, had complied with the statutory requirements for an indigent defendant to obtain a transcript, and that, for reasons unknown, the Circuit Court of Fayette County, West Virginia, failed to furnish him with a transcript, concluded that appellee had been denied due process and equal protection of the laws in violation of the Fourteenth Amendment ment to the Constitution of the United States. The district judge entered an order directing the appellee's release, but suspended execution of the order for a period of ten days in order to afford the Warden the opportunity to take this appeal.
We have reviewed the evidence presented to the district judge and we think it fairly supports his basic findings that appellee desired to appeal, that he evidenced his desire to the trial court and to his Court-appointed counsel within the time allowed for appeal, but that the trial court ignored timely requests by appellee for a transcript of his trial in order to effectuate an appeal from his conviction. The legal conclusion of the district judge to issue the writ necessarily followed, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958...
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State ex rel. Kennedy v. Boles
...Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Chase v. Page, 10th cir., 343 F.2d 167; Boles v. Kershner, 4th cir., 320 F.2d 284; Patterson v. Medberry, 10th cir., 290 F.2d 275; United States ex rel. Westbrook v. Randolph, 7th cir., 259 F.2d 215; Tucker v. M......
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State v. Welch, A--7
...opinion concluded by giving Colorado a choice between releasing the prisoner from custody or granting him a new trial. In Boles v. Kershner, 320 F.2d 284 (4 Cir. 1963), upon conviction of the indigent Kershner in West Virginia, court-appointed counsel, intending to appeal, was not furnished......
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State ex rel. Johnson v. McKenzie
...precedent to the right of appeal, as a practical matter an appeal cannot be effectively prosecuted without one. Boles v. Kershner, 320 F.2d 284 (4th Cir. 1963); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957). To be considered by an appellate court upon review, the errors must be aff......
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Nelson v. Peyton
...be founded on our decisions in Allred v. Peyton, 385 F.2d 360 (4 Cir. 1967); Magee v. Peyton, 343 F.2d 433 (4 Cir. 1965); Boles v. Kershner, 320 F.2d 284 (4 Cir. 1963), and such memorandum decisions as Connors v. Peyton, Mem. Dec. No. 12,157, December 18, 1968; Morgan v. Peyton, Mem. Dec. N......