Coleman v. Smyth

• Decision Date: 05 June 1958
• Docket Number: Misc. No. 2728.
• Citation: 166 F. Supp. 934
• Parties: Ferber J. COLEMAN, Petitioner, v. W. Frank SMYTH, Jr., Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

166 F. Supp. 934

Ferber J. COLEMAN, Petitioner, v. W. Frank SMYTH, Jr., Superintendent, Virginia State Penitentiary, Respondent.

Misc. No. 2728.

United States District Court E. D. Virginia, Norfolk Division.

June 5, 1958.

WALTER E. HOFFMAN, District Judge.

Under the provisions of 28 U.S. C.A. § 2243, it is stated that "a court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." The statute has been construed to the end that it is not mandatory upon the court to "entertain" the application. Brown v. Allen, 344 U.S. 443, 463-465, 73 S.Ct. 397, 97 L.Ed. 469. Particularly is this true when the application and accompanying papers clearly show that the petition is without merit. Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863. The instant proceeding falls within this classification.

Petitioner was indicted by a grand jury of Culpeper County under date of January 12, 1954, the form of said indictment reading in part as follows:

"That Ferber J. Coleman, heretofore, to-wit, on or about the 4th day of January, 1954, in the said County of Culpeper, Virginia, feloniously did kill and murder one George Coleman, Sr., against the peace and dignity of the Commonwealth."

At the outset petitioner attacks the form of the indictment contending that the omission of the words "unlawful act" and "with malice aforethought" constitutes a fatal defect. Manifestly this position is untenable. The indictment substantially follows the statutory short form as prescribed for homicide. Code of Virginia, 1950, § 19-140. It has been held sufficient in Hurd v. Commonwealth, 159 Va. 880, 165 S.E. 536; Maxwell v. Commonwealth, 167 Va. 490, 187 S.E. 506; and Hevener v. Commonwealth, 189 Va. 802, 54 S.E.2d 893, in which latter case the court held that technical common law words were no longer necessary by reason of the statute.

Equally without merit is petitioner's insistence that the indictment fails to show the number and names of the grand jurors. The indictment states "The Grand Jurors of the Commonwealth of Virginia in and for the body of the County of Culpeper and now attending the said Court on January 12, 1954, upon their oaths present * * *." It is endorsed "True Bill, J. W. Button, Foreman, 1-12-54." The order entered on February 23, 1954, the date of trial, makes reference to a "lawful empaneled grand jury." While the petition and exhibits do not reveal the names and number of grand jurors in attendance, this is not to suggest that this information is not available in the records of the Circuit Court of Culpeper County. There is a presumption of regularity which cannot be overcome by a mere suggestion on the part of petitioner.

For like reasons the contentions that there is nothing in the record to show that any petit jury process was ever issued and any petit jury ever summoned according to the statute must fail. Again the order of February 23, 1954, recites that "a lawfully empaneled jury was duly sworn." There is nothing in the statute which requires the listing of the names of the jurors in any formal order relating to any particular case. The two page transcript of the proceedings submitted as an exhibit by petitioner reveals that the jurors were examined on the voir dire. The records disclosing the manner of summoning and selecting the jurors are undoubtedly available in the clerk's office of the trial court, and to permit the use of habeas corpus for the purpose of going back of a record which indicates that a "lawfully empaneled jury was duly sworn" would clog the courts with frivolous allegations from disgruntled prisoners. Furthermore, § 19-176, Code of Virginia, 1950, provides that:

"* * * no judgment shall be arrested or reversed for the failure of the record to show that there was a venire facias, unless made a ground of exception in the trial court before the swearing of the jury."

The same statute has been applied to the method of empanelling the jurors. Cox v. Commonwealth, 186 Va. 798, 44 S.E.2d 363. Additionally, it should be noted that, following the receipt of the verdict, a poll of the jury was waived.

The petitioner was brought on for trial on February 23, 1954, and, upon arraignment, tendered a plea of not guilty. Petitioner stated that he did not desire the services of counsel and elected to represent himself. Despite this fact, in conformity with the Virginia statute, the court advised petitioner of his legal rights and informed him that the court had appointed able counsel to assist him; that counsel would be present and ready to assist him throughout the entire proceedings upon request; all of which was satisfactory to petitioner. To what extent counsel assisted the petitioner is unknown, but the record does reveal that, subsequent to the rendition of the verdict, counsel moved to set aside the verdict and requested oral argument on the motion. Prior to the date fixed for oral argument of the motion, an order was entered on March 19, 1954, reading in part as follows:

"And the accused having in the meantime conferred personally with his court appointed counsel, and having written the court that he did not desire to insist upon the said motion, and stated personally in open court this day that he wished to withdraw the motion to set aside the verdict and requested the court to pronounce sentence, and did not desire further assistance of counsel. The letters from the said Ferber J. Coleman and his court appointed attorney are filed with the papers in this cause."

No writ of error was sought from the sentence of 99 years imposed by reason of the jury's verdict.

Petitioner insists that he was put upon trial for a capital offense without the assistance of counsel, although he concedes that he was not denied the right of counsel and admits the offer of assistance. It is well settled that an accused may intelligently waive the right...