Ex Parte A. B. Farmer, (No. 9192)

• Court: Supreme Court of West Virginia
• Writing for the Court: ROSE.
• Citation: 123 W.Va. 304
• Parties: Ex Parte A. B. Farmer
• Docket Number: (No. 9192)
• Decision Date: 20 May 1941

123 W.Va. 304

Ex Parte A. B. Farmer

(No. 9192)

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1941.
Decided May 20, 1941.

[123 W.Va. 304]

1. Pleading

The defense, by one indicted for a felony, that all persons of his race, although otherwise eligible, were illegally excluded from the grand jury which returned the indictment against him, must be interposed by a plea in abatement.

2. Habeas Corpus

One serving a sentence in the penitentiary who seeks release by habeas corpus on the ground that the negligence and incompetence of the attorneys, who, by appointment of the court, conducted his defense, amounted to a denial of his right to the assistance of counsel under the Sixth Amendment to the Constitution of the United States, has the burden of proving the charge made.

3. Habeas Corpus

The constitutionality of an act of the Legislature, under which one is sentenced to the penitentiary, will not be considered on writ of error to an order of a circuit court discharging a writ of habeas corpus and remanding the petitioner to prison, when the question is not raised in the petition for the writ, nor at the hearing below, nor by assignment of error in this Court.

4. Habeas Corpus

It is not error for a judge to hear and determine the issue in a habeas corpus proceeding after the prisoner has filed his own affidavit charging that such judge, by reason of bias and

[123 W.Va. 305]

May 1941] Ex Parte Farmer

305

prejudice, could not conduct a fair and impartial trial of the case, but setting out no facts justifying the charge, and no evidence is offered in support thereof.

Lovins, Judge, absent.

Error to Circuit Court, Cabell County.

Habeas corpus proceeding by A. B. Farmer. To review an order dismissing his petition, and remanding him to the custody of the warden of the state penitentiary, A. B. Farmer brings error.

Affirmed.

E. Garland Ray, for plaintiff in error.

Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Rose, Judge:

A. B. Farmer prosecutes this writ of error to an order of the Circuit Court of Cabell County entered on December 26, 1940, a special judge presiding, by which a writ of habeas corpus ad subjiciendum issued upon his petition was dismissed, and he was remanded to the custody of the warden of the state penitentiary.

The plaintiff in error, at the June Term, 1940, of the Common Pleas Court of Cabell County, was indicted for an attempt at armed robbery of one Nemur George, and on the 21st day of June, 1940, was tried on said charge in said court and found guilty. On the 12th day of July, 1940, motions for a new trial and in arrest of judgment were overruled, and Farmer was sentenced to the penitentiary for the term of twenty-five years, presumably under the provisions of Code, 61-2-12, as amended by Chapter 28 of the Acts of the Legislature of 1939.

Under date of December 6, 1940, Farmer, by a petition apparently prepared by himself, no counsel appearing, applied to this Court for a writ of habeas corpus ad subjiciendum, which, on the 12th day of December, 1940, was awarded and made returnable before the Judge of the Circuit Court of Cabell County. The warden of the West

[123 W.Va. 306]

Ex Parte Farmer [May 1941

Virginia penitentiary made return, exhibiting certified copies of the indictment of Farmer, of the court record of arraignment, trial, conviction and commitment, and produced the body of the petitioner on the 19th day of December, 1940, when a trial was had, resulting in the discharge of the writ and the remanding of the prisoner.

The application to this Court for the writ of habeas corpus assigns by number twenty-four grounds. Each of these is very inaptly drawn. None of them is in form and substance technically sufficient to justify the issuance of the writ, and most of them relate wholly to what is claimed to be errors in the original trial. We thought these grounds, however, charged, or at least intimated, the existence of facts or conditions which might render the sentence under which the petitioner is incarcerated utterly void, and justify discharge by habeas corpus. Ex Parte Barr, 79 W. Va. 681, 91 S. E. 655. Accordingly, this Court, out of its solicitude for the rights of a lay petitioner, felt justified in issuing the writ in order that a full investigation of the charges made, or intimated, might be had.

The charge most emphasized and repeated in different forms in the petition was apparently intended to make the claim that the whole proceeding in the Court of Common Pleas of Cabell County was void by reason of the fact that the petitioner is of African descent, and that all persons of that race were improperly excluded from the grand jury by which he was indicted and from the petit jury by which he was tried, in accordance with a systematic plan long followed...