Gross v. Smyth

• Decision Date: 22 June 1944
• Citation: 30 S.E.2d 570,182 Va. 724
• Parties: GROSS. v. SMYTH, Superintendent of State Penitentiary.
• Court: Virginia Supreme Court

30 S.E.2d 570

182 Va. 724

GROSS.

v.SMYTH, Superintendent of State Penitentiary.

Supreme Court of Appeals of Virginia.

June 22, 1944.

Habeas corpus proceeding by John M. Gross against W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary.

Discharge refused.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Andrew J. Ellis, of Richmond, for petitioner.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., of Richmond, for respondent.

CAMPBELL, Chief Justice.

This is a proceeding by a writ of habeas corpus awarded by this court on the 14th day of March, 1944, to John M. Gross, pursuant to the provisions of section 5865 of Michie's Code.

The petitioner alleges that he is detained without lawful authority and deprived of his liberty by W. Frank Smyth, Jr., superintendent of the Virginia State Penitentiary. The record discloses that the petition was filed personally by the petitioner, with the request that he be assigned counsel to represent him in this court. This request wasgranted and the court appointed to represent him Mr. Andrew J. Ellis, an eminent attorney of the Richmond City Bar.

The crux of the matter is the validity of certain orders of the Circuit Court of Nansemond county, Virginia, the Corporation Court of the city of Alexandria, Virginia, and the Circuit Court of the city of Richmond, Virginia, under which the petitioner is confined in the State penitentiary.

The order of the Circuit Court of Nansemond county, entered November 1, 1939, by which petitioner was sentenced to a term of fifteen years in the penitentiary, is challenged on the ground that it is void because it fails to recite that the plea of guilty was made in person by the petitioner. The order recites:

"This day came the Commonwealth, by its attorney, and the prisoner was led to the bar in the custody of the jailor of this county, and having been arraigned, by his attorney, plead guilty to the indictment, and with his consent and the assent of the attorney for the Commonwealth, here entered of record, the court proceeded to hear and determine the case without the intervention of a jury, and after hearing the evidence and argument of counsel the court doth find the said John M. Gross guilty. Thereupon, it was demanded of the said prisoner if there was anything he had or knew to say why the court should not now proceed to pronounce judgment against him, and nothing being offered or alleged in delay thereof, it is considered by the court that the said John M. Gross be confined in the Penitentiary of this State for a period of fifteen (15) years * * *"

In Lacev v. Palmer, 93 Va. 159, 163, 24 S.E. 930, 931, 31 L.R.A. 822, 57 Am.St.Rep. 795, Judge Keith, delivering the opinion of the court in a proceeding of habeas corpus, said:

"The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner. The only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law.

"A person held, under proper process, to answer for an offense created by a statute enacted within the constitutional power of the legislature, cannot be discharged upon a writ of habeas corpus, however clear his innocence may be, but must abide his trial in the mode prescribed by law."

It is a settled doctrine that at common law, in prosecutions for felonies, a plea of guilty must be made in person by the accused. 1 Chitty Criminal Law 436.

In Virginia, the rule in regard to the plea to be entered is found in section 4023, Code of 1904, and in Code section 4900, Michie's Code. That section provides "that upon a plea of guilty, tendered in person by the accused, and with the consent of the attorney for the Commonwealth, entered of record, the court shall hear and determine the case without the intervention of a jury * * *."

The language employed in the statute is the identical language employed in Article 1, section 8, of the Virginia Constitution of 1902. In the year 1928 the Constitution of 1902 was amended and section 8 of Article 1 was re-written so that it now reads: "In criminal cases, the accused may plead guilty * * *." It is, therefore, apparent that there is no prescribed constitutional requirement that the plea of guilty must be made in person. As the statute has not been amended since the revision of the Constitution in 1928, there is a statutory requirement that the plea of guilty must be entered in person. This requirement has been upheld in a long line of decisions. See Annotation to Sperry v. Commonwealth, 9 Leigh 623, 36 Va. 623.

It is most significant, however, that the question of the plea has only been raised upon a writ of error and not, until now, in a habeas corpus proceeding.

Whenever it appears, as it does in the case...