Ford v. Coiner
| Citation | 156 W.Va. 362,196 S.E.2d 91 |
| Decision Date | 19 December 1972 |
| Docket Number | No. 13086,13086 |
| Court | Supreme Court of West Virginia |
| Parties | John Wayne FORD v. Ira M. COINER, Warden, West Virginia Penitentiary. |
Syllabus by the Court
1. Under the provisions of Chapter 53, Article 4A, Code of West Virginia, 1931, as amended, commonly known as 'Post-Conviction Habeas Corpus,' there is a rebuttable presumption that petitioner intelligently and knowingly waived any contention or ground in fact or law relied on in support of his petition for habeas corpus which he could have advanced on direct appeal but which he failed to so advance.
2. In a habeas corpus proceeding under Chapter 53, Article 4A, Code of West Virginia, 1931, as amended, the burden of proof rests on petitioner to rebut the presumption that he intelligently and knowingly waived any contention or ground for relief which theretofore he could have advanced on direct appeal.
Morton I. Taber, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Williard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., Charleston, for defendant in error.
Petitioner by this writ of error seeks to reverse a judgment of the Circuit Court of Kanawha County denying appellant's prayer for a writ of habeas corpus.
The appellant, John Wayne Ford, was jointly indicted with a companion for murder, said indictment stating the appellant 'feloniously, wilfully, maliciously, deliberately and unlawfully did slay, kill and murder one Henry Russell.' The appellant pled 'not guilty,' but upon his separate trial in May, 1968, the jury returned a verdict stating, 'We the jury find John Wayne Ford Guilty in the within indictment as charged.'
Appellant's motion to set aside the verdict and for a new trial was overruled and on July 9, 1968, the trial court imposed sentence stating:
'The Court therefore fixes your punishment to confinement in the penitentiary of this State for life.'
Although Section 2, Article 2, Chapter 61, Code of West Virginia, 1931, as amended, provides the penalty for murder in the first degree shall be confinement in the penitentiary for life, it is the contention of appellant, that inasmuch as the verdict of the jury did not expressly state that he was guilty of murder 'in the first degree' as required by Section 15, Article 3, Chapter 62, Code of West Virginia, 1931, as amended, his sentence was improper, and constituted error for which his conviction should be set aside.
The pertinent part of Section 1, Article 2, Chapter 61, Code of West Virginia, 1931, as amended, states 'murder . . . in the commission of, or attempt to commit . . . robbery or burglary, is murder of the first degree.' It is the contention of the appellee that the evidence in the trial of the appellant established that his victim did die from injuries sustained in the commission of the crime of robbery and burglary, and that the above statute states such is murder in the first degree. Therefore, the jury verdict of guilty, as charged in the indictment, was proper to support the sentence prescribed by statute for first degree murder.
Appellant previously had sought review of his conviction and sentence in his trial for murder by writ of error to the Circuit Court of Kanawha County and to the Supreme Court of Appeals, both of which courts refused the relief. The record of Ford's murder trial was filed as an exhibit to his petition for habeas corpus, and is now before this Court. A reading of the murder trial record and evidence leads to but one conclusion, which is that this was a classic 'felony-murder case.'
State's Instruction No. 3 which was given sets forth the felony-murder law of this State, and related the same to the case of defendant Ford, appellant herein, and concluded by instructing that if the evidence proved the facts of death ensuing from the robbery, the crime would be 'murder in the first degree.' There is ample evidence, including the confession of Ford, in the trial record, to justify the giving of State's Instruction No. 3 and to warrant the jury verdict of guilty.
Section 1, Article 2, Chapter 61, Code of West Virginia, 1931, defines murder in the first and second degree, and that part defining murder in the first degree reads as follows:
An examination of the record of the murder trial of appellant shows that under the evidence and instructions the jury could only have returned one of two verdicts, that is, guilty of first degree murder or not guilty. The jury verdict rendered leaves no doubt that they found Ford guilty, which, under the evidence in the case, was first degree murder.
Defendant's Instruction No. 18, also given, tells the jury that if they find the defendant guilty he would be confined in the penitentiary for the rest of his life, unless they recommend mercy. No such recommendation was made.
This Court in construing the Code provision, which was the predecessor to our present Section 3, Article 9, Chapter 62, Code of West Virginia, 1931, as amended, and which was almost identical in language, held: 'In this State there is no such thing as an indictment for murder in the First or Second degree; the indictment is for Murder, and it depends upon the proof, whether it is in the First or Second degree.' Syllabus, Point 4, State v. Schnelle, 24 W.Va. 767 (1884). See also, State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949). We therefore find that the indictment which followed the statutory form, and under which appellant was tried and found guilty, was proper, and that he could be convicted thereunder for murder committed in the commission of robbery or burglary.
The record of the murder trial further discloses that after the jury verdict had been read in open court, in the presence of appellant and his counsel, the following statements were then also made, in open court:
While the failure of the court and the prosecuting attorney to have the jury verdict amended is not explained, the foregoing statements certainly brought to the attention of appellant and his counsel that the jury verdict returned did not include 'guilty of first degree murder.' On July 9, 1968, the date appellant was sentenced, the court also stated to the appellant that the jury had found him guilty of murder in the first degree.
We are not unmindful of the provision of Section 15, Article 3, Chapter 62, Code of West Virginia, 1931, as amended, stating that the jury shall find whether the defendant is guilty of first or second degree murder, and the holding of this Court in State v. McCoy, 95 W.Va. 274, 120 S.E. 597 (1923) and State v. May, 62 W.Va. 129, 57 S.E. 366 (1907). It is noted that the holdings in both the McCoy and May cases resulted from error assigned on appeal from murder convictions. While the failure of the jury verdict in the present case to conform with the provisions of Section 15, Article 3, Chapter 62 of the Code might have been an assignment of error to be raised on an appeal from such conviction, such was not done. In view of the statutory definition of first degree murder and the uncontradicted evidence proven at the trial, when considered with the jury verdict, we are led to the inevitable conclusion that this was a verdict of first degree murder. This deficiency was certainly brought to the appellant's attention by the heretofore-quoted statements of the prosecuting attorney and by the court's statement in sentencing appellant on July 9, 1968.
A review of the murder trial record shows that appellant was afforded due process and a fair and impartial trial that he was represented by two competent attorneys who exerted every possible effort to provide him a fair trial and a proper defense; that his rights guaranteed by the United States and the West Virginia Constitutions were not violated, and that he was found guilty of murder while committing robbery. Section 1, Article 2, Chapter 61, Code of West Virginia, 1931, as amended, specifically defines this offense as murder in the first degree. The jury thus having found appellant Ford guilty, could have returned only a first degree murder verdict.
This present proceeding, being under Article 4A, Chapter 53, Code of West Virginia, 1931, as amended, known as the Post-Conviction Habeas Corpus statute, is governed by the provisions thereof. Subsection (c) of said Section 1 reads in part as follows:
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