Cave v. Cunningham
| Decision Date | 31 August 1962 |
| Docket Number | No. 5483,5483 |
| Citation | 203 Va. 737,127 S.E.2d 118 |
| Parties | LEWIS E. CAVE v. W. K. CUNNINGHAM, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY. Record |
| Court | Virginia Supreme Court |
George G. Grattan, IV (Christian, Barton, Parker, Epps & Brent, on brief), for the petitioner.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the respondent.
This proceeding involves a petition for a writ of habeas corpus ad subjiciendum filed in this court by the petitioner, Lewis E. Cave, pursuant to the court's original jurisdiction in cases of habeas corpus. Section 88 of the Constitution of Virginia; § 17-97, Code of Virginia, 1950; Rule 1:4, Rules of Court; Burks Pleading and Practice (4th Ed., 1952) § 417, pp. 807-8.
On November 28, 1961, we entered a rule to show cause why the prayer of the petition should not be granted; whereupon the respondent Cunningham filed his answer to the rule, and petitioner filed a reply thereto. After having considered the petition, the answer, and the reply, an order was entered on March 7, 1962, docketing the case, requiring briefs to be filed therein, and appointing George G. Grattan, IV, as counsel to represent the petitioner in this proceeding.
The record discloses that on July 23, 1959, Cave was convicted of murder in the first degree in the Circuit Court of Madison County after a trial before the court without a jury. On September 8, 1959, the court entered final judgment sentencing him to life imprisonment.
The sole question involved is: 'Did the Circuit Court of Madison County have jurisdiction and power to try, convict, and sentence petitioner' in accordance with its final order?
The order dated July 23, 1959, states that the accused waived a jury trial but the order fails to state that the Commonwealth's attorney concurred in such waiver as required by Section 8 of the Constitution of Virginia which provides in part:
'(If) the accused plead not guilty, with his consent and the concurrence of the Commonwealth's attorney and of the court entered of record, he may be tried by a smaller number of jurors, or waive a jury.' (Italics supplied)
It is disclosed that the only reference to the waiver of a jury in the record in this case appears in the court's order dated July 23, 1959, the second paragraph of which reads: 'The court proceeded to hear and determine the case without the intervention of a jury as provided by law.' (Italics supplied)
Cave contends that this case is controlled by our decision in Catlett v. Commonwealth (1956), 198 Va. 505, 95 S.E.2d 177; whereas respondent Cunningham contends that the words in the order, 'as provided by law' differentiate this case from the Catlett case, arguing that the phrase 'as provided by law' is sufficient to show that the concurrence of the Commonwealth's attorney was 'entered of record.' With this we do not agree. It is...
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Riddick v. Commonwealth
...that "[d]efects in active jurisdiction can be waived").5 Riddick's primary argument in this regard is based on Cave v. Cunningham, 203 Va. 737, 127 S.E.2d 118 (1962). In Cave, the Supreme Court held that the trial "court was without jurisdiction to try the case ... because of the failure of......
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Vines v. Muncy
... ... 1 Art. I, § 8, Constitution of Virginia; § 19.2-260, § 19.2-257 (felonies); § 19.2-295, Code of Virginia (1950); Lewis v. Cave (1962) 203 Va. 737, 127 S.E.2d 118, 119; McClung v. Weatherholtz (W.D.Va.1972) 351 F.Supp. 5, 9 ... 2 § 19.2-295, Code of Virginia (1950); ... ...
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Richardson v. Commonwealth
...order, spread upon its order book, must show such compliance or jurisdiction is not obtained." Id. ; see also Cave v. Cunningham , 203 Va. 737, 738-39, 127 S.E.2d 118, 119 (1962) (holding that a trial court lacked jurisdiction to conduct a bench trial because the Commonwealth attorney's con......
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Brown v. Slayton, Civ. A. No. 71-C-19-C
...1154 (4th Cir. 1969), cert. denied Cox v. Nelson, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970); see generally Cave v. Cunningham, 203 Va. 737, 127 S.E.2d 118 (1962). Assuming that the petitions also attack the validity of the later hearings respondent argues that they should likewise......