Brooks v. Peyton
| Decision Date | 01 December 1969 |
| Citation | 171 S.E.2d 243,210 Va. 318 |
| Court | Virginia Supreme Court |
| Parties | David Leon BROOKS v. C. C. PEYTON, Superintendent, etc. |
Robert T. S. Colby, Alexandria (Colby & Bowles, Alexandria, on brief), for plaintiff in error.
Edward J. White, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Reno S. Harp, III, Asst. Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.
I'ANSON, Justice.
Petitioner, David Leon Brooks, filed a petition for a writ of habeas corpus, supplemented by a bill of particulars, against the respondent, C. C. Peyton, Superintendent, Etc., alleging that by failure of the Commonwealth to timely prosecute him on an indictment charging larceny he had been denied a speedy trial in violation of the Sixth Amendment to the Constitution of the United States, § 8 of the Constitution of Virginia, and § 19.1--191, Code of 1950, as amended; that his conviction on a second indictment charging robbery, which arose out of the same factual situation as that charged in the larceny indictment, is void because the court lacked jurisdiction to try him; that he was denied the effective assistance of counsel; and that in numerous other respects he was denied certain constitutional rights. After several hearings in the Corporation Court of the City of Alexandria, the trial court entered an order denying and dismissing the petition. We granted a writ of error to the judgment.
From the record, it appears that the petitioner was arrested on a warrant charging him with robbery of the Norton Tallow Manufacturing Company of Alexandria on April 24, 1964. After a preliminary hearing the case was sent on to the grand jury attending the April 1964 term of the Corporation Court of the City of Alexandria, and an indictment was returned on May 4.
Two other men were indicted for their alleged participation in the robbery, and at the trial of one of them during the June 1964 term of court on an indictment containing language similar to the one returned against the petitioner, the trial court held that the indictment charged grand larceny and not robbery as contended by the Commonwealth. As a result of the court's holding in that case, a second and more perfect indictment charging the petitioner with robbery was returned by the September 1964 grand jury.
The petitioner was never arraigned on the first indictment and no proceedings have been had thereon. Trial on the second indictment was set for December 3, 1964, at which time petitioner failed to appear and the case was continued. His bond was revoked, and he was later taken into custody and committed to jail. Thereafter, counsel of petitioner's own choosing was permitted to withdraw from the case, and on January 13, 1965, attorney William L. Cowhig was appointed to represent him.
On February 1, 1965, the petitioner was brought to trial on the second indictment. His counsel moved to quash the first indictment on the ground that the petitioner had been held without a trial for four terms of the corporation court, which has regular terms beginning on the second Monday in each month except during the month of August, and that under the provisions of Code § 19.1--191 he was entitled to be forever discharged from prosecution under that indictment. The trial court pointed out that since petitioner was not being arraigned and tried on the first indictment, he would take the motion under advisement (which motion has not been acted upon) and the Commonwealth proceeded, without objection, to try petitioner on the second indictment.
The petitioner was tried by a jury, found guilty of robbery, his punishment fixed at fifteen years in the State penitentiary, and he was sentenced accordingly. A petition for a writ of error and supersedeas to the judgment was denied by us on October 14, 1965, which in effect affirmed the conviction.
Petitioner now contends that the protection afforded by Code § 19.1--191 is self-operating, and since he was entitled to be discharged from further prosecution on the first indictment due to the Commonwealth's failure to timely prosecute, the trial court lacked jurisdiction to try him on the second indictment and his conviction is void. We do not agree.
The pertinent part of § 19.1--191 reads as follows:
'Every person against whom an indictment is found charging a felony and held in any court for trial, whether he be in custody or not, shall be forever discharged from prosecution for the offense, if there be three regular terms of the circuit or four of the corporation or hustings court in which the case is pending after he is so held without a trial, unless the failure to try him was caused * * *.'
The statute was designed to implement the constitutional guarantee of a speedy trial under the provisions of § 8 of the Constitution of Virginia. Flanary v. Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945).
The protection granted an accused under Code § 19.1--191 is not self-operative. 'It may be claimed, or it may be waived.' Butts v. Commonwealth, 145 Va. 800, 806, 133 S.E. 764, 766 (1926). Failure to invoke the provisions of the statute until after final judgment is a waiver of the protection afforded thereunder. Rose v. Commonwealth, 189 Va. 771, 774, 55 S.E.2d 33, 34 (1949).
At the petitioner's trial on the second indictment on February 1, 1965, the motion to quash was directed to the first indictment. Petitioner did not claim that he was entitled to the protection afforded by the provisions of Code § 19.1--191 as a bar to his prosecution under the second indictment on which he was tried, convicted, and is now being held. Hence he waived any protection that the statute could possibly have afforded him as a bar to his prosecution under the second indictment.
In the present proceeding the petitioner is seeking to employ a writ of habeas corpus as a substitute for an appeal or writ of error. The function of a writ of habeas corpus is to inquire into jurisdictional defects amounting to want of legal authority for the detention of a person on whose behalf it is asked. The court in which a writ is sought examines only the power and authority of the court to act, not the correctness of its conclusions, and the petition for a writ may not be used as a substitute for an appeal or writ of error. Council v. Smyth, 201 Va. 135, 139, 140, 109 S.E.2d 116, 120 (1959).
Since the right to a discharge under a statute, which provides that if a person is not tried within the specified time he shall be discharged, is not absolute in the sense that a mere lapse of time ousts the court of jurisdiction, a judgment of conviction is not void so as to...
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