Fitzgerald v. Smyth, 4070

Decision Date09 March 1953
Docket NumberNo. 4070,4070
Citation194 Va. 681,74 S.E.2d 810
CourtVirginia Supreme Court
PartiesARTHUR WILLIAM FITZGERALD v. W. FRANK SMYTH, JR., SUPERINTENDENT OF VIRGINIA STATE PENITENTIARY. Record

W. A. Hall, Jr., for plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Thomas M. Miller, Assistant Attorney General, for defendant in error.

JUDGE: SPRATLEY

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

On October 18, 1944, petitioner, Arthur William Fitzgerald, a convict in the State Penitentiary of Virginia, was tried and convicted in the Circuit Court of the City of Richmond, upon an information which charged that he had been convicted of a felony on three previous occasions, and in each instance sentenced to confinement therefor in the penitentiary. A sentence to further confinement in the penitentiary for a term of ten years, to begin at the end of his present term of confinement was imposed on him. Code of Virginia, 1942, (Michie) sec. 5054, now Code of Virginia, 1950, sec. 53-296.

On September 26, 1951, petitioner instituted this proceeding by filing a petition in the Circuit Court of the City of Richmond for a writ of habeas corpus, seeking his discharge from the custody of the respondent, W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary. He alleged that his detention by the respondent was illegal, because each of the three convictions upon which his recidivist sentence was based was null and void and without due legal process. The Circuit Court of the City of Richmond awarded the writ, and ordered it returnable to the Circuit Court of Augusta County for hearing.

On January 25, 1952, hearing was had in the Circuit Court of Augusta County, and that court, after considering the evidence and the argument of counsel, subsequently entered an order dismissing the writ and remanding the petitioner to the custody of the respondent. We granted writ of error.

The record discloses that petitioner, prior to his conviction as a recidivist, had been convicted three times in the courts of this State, as follows:

(1) On February 24, 1936, in the Circuit Court of Augusta County on an indictment for grand larceny, and sentenced to four years in the penitentiary.

(2) On June 1, 1942, in the Corporation Court of the City of Lynchburg, upon an indictment containing two counts, one charging the forgery of a check for $10.25 and the other charging the uttering of the forged instrument, and sentenced to two years in the penitentiary.

(3) On August 16, 1944, in the Circuit Court of Amherst County, upon an indictment containing two counts, one charging the forgery of a check for $19.95, and the other charging the uttering of the forged instrument, and a sentence of three years imposed.

Petitioner contends that the judgments of February 24, 1936, and August 16, 1944, are void because of the failure of the trial court in each instance to afford him counsel, which failure constituted a denial of a right guaranteed him under the due process clause of the Fourteenth Amendment of the Federal Constitution; that the judgment of June 1, 1942, was in violation of his constitutional rights because counsel assigned to him by the trial court did not appear at his trial; and that consequently his conviction as a third offender is invalid, null and void.

The indictment upon which petitioner was convicted on February 24, 1936, charged him with the grand larceny of an automobile. The judgment and sentence thereon were entered as follows:

'This day came the Attorney for the Commonwealth and the defendant was led to the bar of the Court in custody of the Sheriff of this County, and being arraigned the said defendant acknowledged himself to be guilty of grand larceny as charged in the indictment in this case. Whereupon, the Court proceeded to hear and determine this case without the intervention of a jury. Upon consideration whereof, it is considered and ordered by the Court that the said defendant be delivered by the Sheriff of this County to the Superintendent of the Penitentiary of this State, and by said Superintendent received into said penitentiary to be confined therein and treated and dealt with according to law for the term of four years.'

Petitioner was not represented by counsel in that proceeding. He asserts that by reason of his youth and ignorance he was incapable of understanding the nature of the charge against him, or of determining the effect of a plea of guilty, and consequently was unable adequately to represent himself. He testified in this proceeding that he, together with several other boys, merely took the automobile for a ride; that he was then only nineteen and one-half years of age and had not advanced further than the sixth grade in school; that he thought he was charged only with the unauthorized use of the car; that he did not know he had the right to have counsel assigned to him, nor did he have funds to secure counsel; and that he received no advice from the trial judge with reference to the effect of a plea of guilty.

He admitted, however, that he did not, at that time, think it necessary to request the court to assign counsel to him; that when he was arrested on the warrant charging him with the theft of the automobile, his family accompanied him to the preliminary hearing before the trial justice and likewise appeared in court on the trial of the indictment; that he discussed the question of obtaining a lawyer with his father and they decided not to employ counsel, and no request was made therefor; that he was familiar with court proceedings; that prior to his trial, he had been twice tried and convicted for forgery and given a punishment of six months for each offense by the Circuit Court of Augusta County, the service of each sentence being suspended by the trial judge; that about three years prior to 1936, he had been charged with the theft of an automobile, and, after trial, committed to a reform school; and that he had been convicted of numerous charges of drunkenness and his family had paid the fines imposed on him.

The respondent was unable to prove in detail what took place at the trial more than fifteen years ago. The trial judge died July 31, 1940. However, W. C. Drumheller Chief of Police of the City of Waynesboro, and a police officer since 1932, testified that he served upon petitioner the warrant which specifically charged him with the larceny of the automobile; that he was present at the preliminary hearing before the trial justice and at the trial in the circuit court; that the warrant and the indictment were in each instance read to the petitioner; that petitioner personally waived a jury and pleaded guilty; and that it had always been 'customary' for the Circuit Court of Augusta County to appoint an attorney to represent defendants if they desired counsel, but were themselves unable to procure legal aid.

Earl McF. Taylor, a practicing attorney at the Augusta County bar, who was deputy clerk of that county in charge of the court records in 1935 and 1936, said it was the 'practice' of the Circuit Court of that County to inquire of an accused whether or not he had or wanted counsel, whether he fully understood the nature of the offense with which he was charged, and desired to have his case heard by a jury, or by the court without a jury, explaining the various reasons therefor.

It is manifest that petitioner, as a young man, had led quite a wayward life, and had had considerable experience with court procedure. His evidence shows that in 1936 he knew the difference between the consequence attached to the theft of an automobile and that attached to a mere unauthorized use thereof.

No objection was made to the judgment of the court and no writ of error was prosecuted. Petitioner has waited more than fifteen years to attack the sufficiency of the evidence to support his conviction of grand larceny. The record shows that he 'acknowledged himself to be guilty of grand larceny as charged in the indictment,' a complete confession of guilt. In view of his admissions and the record, it is too late to assert that he was tried for any offense save that of grand larceny. He has not borne the burden of showing that the lack of counsel worked to his disadvantage, or that his trial was attended with an ingredient of unfairness. The circumstances produce a conclusive presumption to the contrary effect.

In 1936, neither the Constitution nor the statutes of Virginia specifically required a court to assign counsel to represent an accused. Prior to 1940, there was no statutory provision with reference to the appointment of counsel or the advice of counsel as a prerequisite to waiver of trial by jury. Thornhill v. Smyth, 185 Va. 986, 41 S.E.2d 11.

In Thornhill v. Smyth, supra, we held, in determining whether it was necessary to the validity of a conviction for a felony, that the record of the trial court affirmatively show that an accused, who had pleaded not guilty and waived a trial by jury, did so 'after being advised by counsel,' that the 1940 amendment of § 4776, Code of Virginia, 1942 (Michie), 'creates only a statutory right involving trial procedure, a violation of which would be subject only to direct attack and not by a collateral attack in a habeas corpus proceeding.' (185 Va. at page 988). Nor is habeas corpus available to secure a judicial determination of the sufficiency of the evidence. Nor can it be used as a substitute for a writ of error or appeal.

Virginia Code, 1942 (Michie) § 4776, in effect in 1936, reads as follows:

'No person shall be convicted of felony, unless by his confession of guilt in court, or by his plea, or by the verdict of a jury, accepted and recorded by the court.'

Virginia Code, 1936, (Michie) § 4900 *, further provides, in part, that 'upon a plea of guilty, tendered in person by the accused, and with the consent of the Commonwealth entered of record, the court shall hear and determine the case without...

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19 cases
  • Jones v. Cunningham
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 16, 1963
    ...cited therein. Virginia recognizes these principles. Morris v. Smyth, 202 Va. 832, 120 S.E.2d 465, 466 (1961); Cf. Fitzgerald v. Smyth, 194 Va. 681, 74 S.E.2d 810, 816 (1953). 18 "Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a s......
  • Holly v. Smyth
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 3, 1960
    ...corpus, attack the recidivist sentences on this ground. See: McDorman v. Smyth, 1948, 188 Va. 474, 50 S.E.2d 423; Fitzgerald v. Smyth, 1953, 194 Va. 681, 74 S.E.2d 810. Holly brought a petition in 1958 seeking a writ of habeas corpus in the Hustings Court of the City of Portsmouth. He attac......
  • Huguely v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • March 4, 2014
    ...Constitution of Virginia.” Thomas v. Commonwealth, 260 Va. 553, 558 n. 2, 539 S.E.2d 79, 82 n. 2 (2000) (citing Fitzgerald v. Smyth, 194 Va. 681, 690, 74 S.E.2d 810, 815 (1953)); see Bolden v. Commonwealth, 11 Va.App. 187, 190, 397 S.E.2d 534, 536 (1990) (“An accused's right to be represent......
  • Cradle v. Peyton
    • United States
    • Virginia Supreme Court
    • September 8, 1967
    ... ... Watkins v. Commonwealth, 174 Va. 518, 522, 6 S.E.2d 670, 671; Fitzgerald v. Smyth, 194 Va. 681, 690, 74 ... Page 885 ... S.E.2d 810, 816; Morris v. Smyth, 202 Va. 832, ... ...
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1 books & journal articles
  • "incorporation" of the Criminal Procedure Amendments: the View from the States
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 84, 2021
    • Invalid date
    ...(citing Barnes v. Commonwealth, 23 S.E. 784, 787 (Va. 1895); VA. CONST. art. I, § 8) (footnote omitted)); accord Fitzgerald v. Smyth, 74 S.E.2d 810 (Va. 1953); Cottrell v. Commonwealth, 46 S.E.2d 413 (Va. 1948). 319. Watkins, 6 S.E.2d at 671 ("It is well settled that courts of record having......

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