Driver v. Seay
| Decision Date | 20 November 1944 |
| Citation | 32 S.E.2d 87,183 Va. 273 |
| Court | Virginia Supreme Court |
| Parties | DRIVER. v. SEAY, Sheriff. |
Error to Circuit Court, Henrico County; Julien Gunn, Judge.
Habeas corpus proceedings by Cleo Driver against T. Wilson Seay, Sheriff, etc. To review an order dismissing the writ, petitioner brings error.
Affirmed.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
L. Gleason Gianniny and Alfred M. Thornhill, both of Richmond, for plaintiff in error.
Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for defendant in error.
Cleo Driver was charged with attempted rape and sodomy in separate indictments to which he pleaded not guilty. On January 25, 1943, the issues raised by the indictments and the pleas were submitted to a jury, who returned the following verdict: "We, the jury, find the accused insane." Thereupon the trial court committed the accused to the Southwestern State Hospital, Marion, Virginia. Later, the superintendent of the hospital declared him sane and returned him to the custody of the sheriff of Henrico County. On February 24, 1944, the accused was arraigned again on the same two indictments. He refused to plead. Counsel moved the court to discharge him upon the ground of former jeopardy. The court overruled the motion and continued the case.
On March 21, 1944, the accused applied for and obtained a writ of habeas corpus which, on the hearing, was dismissed, and the accused was held for further proceedings on the two indictments. From the order dismissing the writ of habeas corpus this writ of error was awarded.
It is well settled in Virginia that the proper method of raising the question of former jeopardy is by special plea of former acquittal or conviction. Seymourv. Commonwealth, 133 Va. 775, 112 S.E. 806. In this jurisdiction and elsewhere it is held that such a plea must be in writing. DeBoer v. Commonwealth, 147 Va. 671, 137 S.E. 469, 470. See Burford v. Commonwealth, 179 Va. 752, 20 S.E.2d 509.
No accused is compelled to plead former jeopardy. It is a right he may or may not exercise. While there are exceptions, the general rule is that, if such a plea is not filed at the proper time, the defense is deemed to have been waived. Zimmerman v. Commonwealth, 148 Va. 745, 138 S.E. 569; 14 Am. Jur. 955-956. "The law is well settled that the defense of former acquittal or conviction in one trial is a matter of defense to be relied upon in the second trial; it does not go to the jurisdiction and affords no ground for release upon habeas corpus." Ex parte Perry, 94 Cal.App. 235, 270 P. 996, 997. See Ex parte Hamlin, 142 Tex.Cr.R. 185, 152 S.W. 2d 334.
The trial court had jurisdiction of the subject matter and the parties. It follows that an erroneous ruling on the facts or the law, or both, does not deprive the court of jurisdiction. In the final analysis, the pertinent question which must be determined in this proceeding is the correctness of the ruling of the court in another case therein pending. The orderly method to test such a ruling is by direct attack in an application for a writ of error. Otherwise a writ of habeas corpus can be utilized as a...
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...part Mooney, 26 W.Va. 36. The rule is otherwise if the judgment is void. Ex parte Evans, supra; Ex parte Mooney, supra. See Driver v. Seay, 183 Va. 273, 32 S.E.2d 87; Ex parte Dixon, 330 Mo. 652, 52 S.W.2d 181; State ex rel. Dunlap v. Utecht, 206 Minn. 41, 287 N.W. A conviction and sentence......
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Travis v. Finley, Record No. 1938-00-2.
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3.5 Pretrial Motions
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