Ex parte Farmer

• Decision Date: 20 May 1941
• Docket Number: 9192.
• Citation: 14 S.E.2d 910,123 W.Va. 304
• Parties: Ex parte FARMER.
• Court: West Virginia Supreme Court

14 S.E.2d 910

123 W.Va. 304

Ex parte FARMER.

No. 9192.

Supreme Court of Appeals of West Virginia.

May 20, 1941

E. Garland Ray, of Huntington, for plaintiff in error.

Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty Gen., 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 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 in Cabell County.

The Supreme Court of the United States has well established the principle that such a policy or practice by the governmental authorities of a state or subdivision thereof is a substantial deprivation of the rights of a colored citizen as to make wholly void his conviction, regardless of the apparent regularity of the court proceedings. In re Wood (Wood v. Brush), 140 U.S. 278, 11 S.Ct. 738, 35 L.Ed. 505; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. --; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839. However, we cannot say that the court below erred in refusing to discharge the prisoner on this ground. It is well established in this state that such an objection should be made by plea in abatement. State v. Cook, 81 W.Va. 686, 95 S.E. 792; State v. McClelland, 85 W.Va. 289, 101 S.E. 472; State v. Frazier, 104 W.Va. 480, 140 S.E. 324. In the case at bar, moreover, this rule works no hardship on the prisoner, for, on the hearing, he totally failed to maintain this charge by evidence. On the point, his sole witness was himself, and he merely testified that there was no negro on the grand jury by which he was indicted, and, although he had been in and about the court for ten years, he had never known of a negro to serve on a grand jury, and only one or two on a petit jury. On behalf of the warden, the clerk of the Circuit Court and Court of Common Pleas who had been such for seven years, testified that negroes on petit juries of that court were not "unusual", but recalls no negro on a grand jury during his term; also, that he has never observed any effort to exclude negroes from either jury. One jury commissioner who has served since 1936, testified that negroes as such, were never excluded; that he thinks some negroes were on all jury lists, and thinks negroes were drawn on the list for 1940. He remembers, however, only one negro who served on the petit jury during his term, and none on the grand jury. The other jury commissioner testified that no effort was ever made to exclude negroes from either grand or petit juries; that he believes there were negroes on both the grand and petit juries for the June Term, 1940.

The prosecuting attorney, who has served as such since 1932, testified that there have been numerous negroes on both juries during his term, but none on either jury for 1940. No documentary evidence or jury records were produced by either party. The trial court, therefore, could have made no other finding than that the petitioner had failed to establish this ground for a discharge.

A second ground vigorously urged by the petitioner was that he was unable to employ counsel, and that the attorneys appointed for him by the court were incompetent and grossly neglected their duties. This ground is held to be sufficient to make a conviction void under the Sixth Amendment to the...