Cunningham v. Smith

• Decision Date: 27 April 1964
• Docket Number: No. 5768,5768
• Citation: Cunningham v. Smith, 205 Va. 205, 135 S.E.2d 770 (1964)
• Parties: W. K. CUNNINGHAM, JR., SUPERINTENDENT, ETC. v. LOUIS NORWOOD SMITH. Record
• Court: Virginia Supreme Court

Page 770

135 S.E.2d 770

205 Va. 205

W. K. CUNNINGHAM, JR., SUPERINTENDENT, ETC. v. LOUIS NORWOOD SMITH.

Record No. 5768.

Supreme Court of Appeals of Virginia

April 27, 1964.

Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the plaintiff in error.

Robert P. Beaver (Bremner, Merhige, Byrne, Montgomery & Baber, on brief), for the defendant in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

This writ of error, awarded W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary, challenges the ruling of the trial court, rendered in a habeas corpus proceeding, that Louis Norwood Smith was being detained by the Superintendent without lawful authority.

On April 4, 1960, Smith was indicted for incest by the Grand Jury of the City of Hampton. On the same date, he was also indicted by the same grand jury for rape.

Smith was arraigned and entered a plea of not guilty to each charge. On April 25, 1960, he waived trial by jury and was on that date tried and convicted by the court of each offense. He was sentenced to five years in the penitentiary on the incest indictment and to ten years for rape.

On December 19, 1962, Smith filed his petition for a writ of habeas corpus in the Law and Equity Court of the City of Richmond. He alleged that his convictions and sentences were void because the orders of conviction failed, 'to show the consent and concurrence of the Commonwealth's Attorney in the waiving of a trial by jury on the part of the petitioner as mandatorily required by Section 8 of the Constitution of Virginia.'

Attached to Smith's petition were copies of his orders of conviction. The orders, insofar as they relate to the question before us, were identical and in the following language:

'Whereupon the accused was arraigned and after private consultation with Robert Quinn and Percy Carmel, counsel of his own choosing, pleaded not guilty to the indictment, which plea was tendered by the accused in person, and the Court being of the opinion that the accused fully understood the nature and effect of his plea, proceeded to hear and determine the case without the intervention of a jury, the defendant having waived same after consultation with his attorneys, and having heard the evidence of the Commonwealth. . . .'

The trial court ordered Smith's petition to be filed and directed the Superintendent to show cause why the writ of habeas corpus should not issue. In response to the show cause order, the Superintendent filed an answer. Attached to the answer were copies of each of the indictments which had been returned against Smith. On the reverse side of the indictments, in the handwriting of the Judge of the Circuit Court of the City of Hampton, was a notation in language, insofar as it pertains to the question before us, as follows:

'The def. arraigned with counsel of own choosing, Percy Carmel & Robert Quinn and pleaded not guilty. The def. with advice of his attorneys waived trial by jury, concurred in by com. atty. The court heard this evidence and finds this def. guilty . . ..

Modified and affirmed.

4/25/60

F.A.K., Judge'

The Superintendent's answer also alleged that on November 6, 1962, a nunc pro tunc proceeding was held in the Circuit Court of the City of Hampton as a result of which new orders of conviction were entered in Smith's case, as of April 25, 1960, the original date of conviction, showing the concurrence of the Commonwealth's Attorney in Smith's waivers of trial by jury.

The Law and Equity Court of the City of Richmond ruled that Smith was detained without lawful authority and ordered the Superintendent to discharge him into the custody of the Commonwealth's Attorney for the city of Hampton.

The Attorney General, in argument before us, stated that because Smith was not present at the nunc pro tunc proceeding of November 6, 1962, the orders entered as a result thereof were invalid. The Attorney General then agreed with counsel for Smith that the sole question to be decided is whether the endorsements on the reverse side of the indictments, in the handwriting of the Judge of the Circuit Court of the City of Hampton, were sufficient to enter of record the concurrence of the Commonwealth's Attorney in the waivers of trial by jury as required by Section 8 of the Constitution of Virginia. That section reads, in part, as follows:

'In criminal cases, the accused may plead guilty; and, 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...