Hanson v. Smyth
| Decision Date | 20 November 1944 |
| Docket Number | Record No. 2909. |
| Citation | 183 Va. 384 |
| Court | Virginia Supreme Court |
| Parties | JEROME SILVIA HANSON v. W. FRANK SMYTH, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY. |
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. JUDGMENTS AND DECREES — Collateral Attack — Failure to Record Fact That Grand Jury Found Indictment against Accused. — In the absence of a constitutional provision that a felony may be prosecuted only by indictment, a judgment of conviction is not amenable to a collateral attack in a habeas corpus proceeding on the ground that there is no proper record of the fact that the grand jury found an indictment against the accused. Such irregularity or defect may be attacked only directly by an appeal from the judgment of conviction.
2. JUDGMENTS AND DECREES — Failure of Record to Show Affirmatively That Indictment Was Returned in Court by Grand Jury — Case at Bar. — The instant case was a writ of error to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. The record showed that two indictments were presented to the grand jury and that separate orders of conviction were entered on the two indictments. One of the orders was captioned, "For aiding and abetting in committing larceny", and the other, "On an indictment for robbery," and in this last order the term of confinement was fixed at ten years. Petitioner contended that an order entered on the same day as the presentment of the indictments showed the return into open court by the grand jury of indictments against the petitioner for simple larceny and that such crime was irreconcilably in conflict with the crime of storebreaking and hence he contended that the record failed to show affirmatively that the grand jury found an indictment against the petitioner for storebreaking and that, therefore, the judgment of conviction was necessarily null and void. The Virginia Constitution contains no requirement for presentment or indictment in prosecutions for capital, or otherwise infamous crime, the requirement being merely statutory as provided by section 4866 of the Code of 1942.
Held: That since the statutory requirement for an indictment in the present case was not jurisdictional, the failure of the record to show affirmatively that the indictment was returned into court by the grand jury was not such a defect as would render null and void the judgment of conviction based thereon.
3. JUDGMENTS AND DECREES — Effect of Specification of Offense in Order Showing That Indictment Was Returned in Court — Case at Bar. — The instant case was a writ of error to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. The record showed that two indictments were presented to the grand jury and that separate orders of conviction were entered on the two indictments. One of the orders was captioned, "For aiding and abetting in committing larceny," and the other "On an indictment for robbery," and in this last order the term of confinement was fixed at ten years. Petitioner contended that an order entered on the same day as the presentment of the indictments showed the return into open court by the grand jury of indictments against the petitioner for simple larceny and that such crime was irreconcilably in conflict with the crime of storebreaking and hence he contended that the record failed to show affirmatively that the grand jury found an indictment against the petitioner for storebreaking and that, therefore, the judgment of conviction was necessarily null and void. The order entered on the same day the indictments were presented recited that the grand jury "returned in court and presented the following indictments", against the petitioner. Each indictment was recorded as having been found to be "A true bill".
Held: That it clearly appeared from the record that the indictments, which the entry on the order books showed were presented into open court by the grand jury, were the same indictments upon which the petitioner was convicted and that each charged him with the commission of a felony. The specification of the offense as larceny in the order was not in irreconcilable conflict with the indictments because they in fact charged both storebreaking and larceny.
4. JUDGMENTS AND DECREES — Entry on Order Book — Order of Conviction — Purpose. — The purpose of the entry of an order of conviction on the order book is not to identify the exact crime, with which the accused stands charged, but merely to show that he has been openly and publicly indicted in open court by the grand jury.
5. JUDGMENTS AND DECREES — Caption — Effect of Failure of Final Order to Specify Offense — Case at Bar. — The instant case was a writ of error to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. The record showed that two indictments were presented to the grand jury and that separate orders of conviction were entered on the two indictments. One of the orders was captioned, "For aiding and abetting in committing larceny," and the other, "On an indictment for robbery," and in this last order the term of confinement was fixed at ten years. Petitioner contended that the judgment of conviction was a nullity because it was captioned, "On an indictment for robbery", and that he was not indicted for that offense, and because no offense was specified in the body of the order.
Held: That there was no merit in the contention of the petitioner since the caption is no part of the judgment and was not essential to its validity and the failure of the final order to specify the offense did not render it invalid since an inspection of the entire record showed the nature of the offense for which the petitioner was indicted and convicted.
6. JUDGMENTS AND DECREES — Collateral Attack — Failure of Order to State Particular Offense of Which Accused Was Convicted. — The failure of an order to state the particular offense of which an accused was convicted does not render it subject to collateral attack in a habeas corpus proceeding.
7. SENTENCE AND PUNISHMENT — Sentence Should Be Rendered Severally against Joint Defendants. — Except in cases of conspiracy and the like, where two or more persons are jointly tried and convicted, the sentence should be rendered against them severally and not jointly.
8. SENTENCE AND PUNISHMENT — Sentence Rendered Jointly against Joint Defendants — Collateral Attack — Case at Bar. — The instant case was a writ of error to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. The petitioner contended that the final judgment rendered against him was a nullity because the punishment was jointly assessed against the petitioner and another man and it should have been against each separately.
Held: That a joint sentence is at most merely erroneous and not void and must be attacked directly by an appeal or writ of error, and may not be challenged by a collateral attack in a habeas corpus proceeding.
9. SENTENCE AND PUNISHMENT — Joint Sentence against Two Men Where Only One Man Tried — Case at Bar. — The instant case was a writ of error to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. Petitioner contended that judgment of conviction rendered against him was void because it meted out punishment to two men, the petitioner and another, whereas the record showed that only one was arraigned, plead guilty, and was tried, and that it was impossible to say from the record which of the two was tried and convicted, but petitioner made no claim that he was not the person tried and convicted.
Held: That if two persons were jointly indicted and only one was tried, but both were sentenced, the judgment of conviction was void as to the one which was not tried but was valid to the one tried.
Error to a judgment of the Circuit Court of Lunenburg county. Hon. Joel W. Flood, judge, designate, presiding.
The opinion states the case.
W. A. Hall, Jr., for the plaintiff in error.
Abram P. Staples, Attorney General, and M. Ray Doubles, Assistant Attorney General, for the defendant in error.
This writ of error was awarded to Jerome Silvia Hanson to review a judgment of the lower court dismissing his petition for a writ of habeas corpus, and ordering his remand to the custody of W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary.
The petitioner has been held for a number of years in the penitentiary pursuant to several judgments of conviction which we will not undertake to recite in detail. Suffice it to say, that the Attorney General concedes that if the petitioner be correct in his contention that the judgment entered by the Circuit Court of Lunenburg county, on August 5, 1937, whereby the petitioner was convicted of a felony and sentenced to be confined in the penitentiary for a term of ten years, be void, then the petitioner is entitled to his release. The petitioner, on his part, concedes that if his contention be not correct, then he is not entitled to his release.
The record shows that on August 2, 1937, in the Circuit Court of Lunenburg county, two indictments were presented to the grand jury. One charged "Jerome Silvia Hanson, alias Silvia Ward, alias Silvia Hanson and Wayne Ward" with "feloniously" breaking and entering the storehouse of one C. C. Hawthorne, with intent to commit larceny, and with larceny of certain money and property of the value of $50. On this indictment there appears an amendment charging the petitioner with aiding and abetting Wayne Ward to escape.
The other indictment is similar, except that the storehouse broken into is alleged to be that of "one R. B. Hardy," and the goods stolen are alleged to have been of the value of $19.75.
On the back of each indictment there appears the endorsement, "A true bill, S. M. Arvin, Foreman."
On the same day the...
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