Mcdorman v. Smyth
| Decision Date | 22 November 1948 |
| Citation | 188 Va. 474,50 S.E.2d 423 |
| Parties | McDORMAN. v. SMYTH. |
| Court | Virginia Supreme Court |
Habeas corpus by Daniel McDorman against W. Frank Smyth, Jr., Superintendent of Virginia State Penitentiary to secure petitioner's release.
Petitioner remanded in accordance with opinion.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.
W. A. Hall, Jr., of Richmond, for petitioner.
J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for respondent.
This proceeding, brought to obtain the release of the petitioner from the custody of the Superintendent of the Virginia State Penitentiary, is a sequel to the case of McDorman v. Smyth, 187 Va. 522, 47 S.E. 2d 441. The record in that case, by agreement of the parties, has been adopted as the record in this proceeding.
The record discloses that the petitioner has been convicted six times in the courts of this State, as follows:
At the date of the decision in the former case, the petitioner had served in full the sentences for the first three convictions. However, he attacked the validity of all of the above convictions and sentences except the third. The attack on his first and second convictions and, in part, on his fourth conviction, was made for the purpose of establishing the invalidity of his fifth conviction as a prior offender. His sixth conviction was claimed to be void on the ground that the escape was from custody void at law at the time of the escape.
In that case, we sustained the validity of his conviction of January, 1932, his fourth conviction, and held that since his detention was lawful under the sentence then imposed, there was no occasion for us to inquire into the validity of his subsequent convictions, since he had not then begun the service of the sentences thereunder.
The petitioner completed the service of his fourth sentence on May 24, 1948. He has since been held in custody under the sentences imposed on his fifth and sixth convictions.
In this proceeding he attacks the legality of his detention under the sentence imposed on him on March 9, 1932, in the Circuit Court of the city of Richmond, on an information charging three prior felony convictions. Virginia Code 1942 (Michie), section 5054. He contends that sentence was invalid because the sentences imposed on his first and second convictions were invalid and void, the invalidity of either of them being sufficient to nullify his fifth conviction as a third offender.
He also contends that the sentence of March 9, 1932, was void because he was not assigned counsel at the trial, and did not waive the assistance of counsel.
The Commonwealth concedes that if either of the first two housebreaking convictions is void, then the conviction in 1932, as a third offender, is also void. It maintains, however, that the sentence upon the sixth conviction remains to be served because the petitioner escaped from the valid sentence of January 18, 1932.
We will first consider the questions raised as to the validity of the sentence imposed upon the first conviction, November 10, 1926.
In October, 1926, an indictment was returned in the Circuit Court of Rockingham county, which charged that "Daniel McDorman and Melvin Gray, on or about the 15th day of July, 1926, in the said county, a certain railroad box car, feloniously did break and enter, with intent the goods and chattels of the Merchants Grocery and Hardware Company, in said box car then and there being, feloniously to steal, take and carry away, and cigarettes, of the value of sixty-four dollars, of the goods and chattels of the said Merchants Grocery Company, in the said box car then and there being found, feloniously did steal, take and carry away, * * *."
Upon this indictment the petitioner was tried on November 10, 1926, and judgment was entered against him in the following language:
"This day came the attorney for the Commonwealth and the accused, Daniel McDorman and Melvin Gray, came into court in the custody of the sheriff of this county, and thereupon the said Daniel McDorman and Melvin Gray each in person withdrew his plea of not guilty entered at a former day of the term and pleaded guilty to the indictment, and the Court, with the consent of the attorney for the Commonwealth, proceeded to hear and determine the case without the intervention of a jury, and having heard the evidence, doth fix their punishment at one year in the State Penitentiary, and it being inquired of the said prisoners if they had or knew of anything to say why the court should not pronounce sentence on them as aforesaid and nothing being offered or alleged in delay thereof, it is considered by the Court that the Commonwealth recover against the said Daniel McDorman and Melvin Gray the costs incident to this prosecution and that the said Daniel McDorman and Melvin Gray be confined in the penitentiary of this State at hard labor for the term of one year less 39 days, the time said McDorman and Gray have been held in jail awaiting trial, and thereupon the said prisoners were remanded to jail until they can be delivered into the custody of an officer of the State Penitentiary, to be removed to the public jail and penitentiary house of this Commonwealth there to be held for the terms aforesaid."
The petitioner attacks the entire proceeding upon that trial as lacking due process of law on the grounds: First, that the indictment did not charge a crime, in that it failed to allege the ownership of the "certain railroad box car, " charged to have been broken and entered; second, that it did not allege the ownership of the cigarettes alleged to have been stolen since the names of the individuals trading as the "Merchants Grocery and Hardware Company, " were not stated; third, because the petitioner, an illiterate and ignorant youth under eighteen years of age when the alleged offense was committed, was tried without counsel or tender of counsel, and was coerced into confessing his guilt of the charge of which he was innocent; and, fourth, that being under eighteen years of age at the time of the commission of the alleged offense, he could not have been lawfully given a sentence to the penitentiary by virtue of Virginia Code 1942 (Michie), section 1910.
The Commonwealth has been unable to prove in detail what took place at the trial more than twenty-two years ago. We have only the evidence of the petitioner as to the circumstances and incidents of that trial.
Petitioner testified that he was born August 10, 1908; that he had gone as far in school as the second grade; that when he was arrested he was confined in jail, being unable to secure bail because of the poverty of himself and family; that he first pleaded not guilty; that before he was tried he had a conference with the trial judge, and that he then pleaded guilty because he was scared by a policeman and the "district attorney, " who told him that he would be given a longer sentence if he did not; that the judge gave him no advice; that no witnesses testified in the case; and that he was innocent of the crime charged against him. He stated that his family did not communicate with him in jail, and his father had no funds and was living on charity. He said that he became implicated with some other boys in the offense charged because he smoked some of the stolen cigarettes which the other boys had brought to his father's home and hid in his father's barn; that he ignorantly pleaded guilty because of the further fear that his father might get into trouble; that he had never been in trouble before; and that he was ignorant of his right to consult a lawyer or to have a lawyer assigned to defend him, and no one informed him of his right to assistance of counsel. The record of his admission to the penitentiary gave the date of his birth as August 10, 1908.
In recent years a great multitude of habeas corpus proceedings have been instituted bringing up the question whether, under various circumstances, lack of assistance of counsel in criminal cases amounts to a failure of due process of law, within the meaning of the "due process" clause of the Fourteenth Amendment to the United States Constitution, considered in connection with the right to "Assistance of Counsel" guaranteed under the Sixth Amendment.
In Stonebreaker v. Smyth, 187 Va. 250, 46 S.E.2d 406, Chief Justice Hudgins reviewed and analyzed many of the cases dealing with the above subject, especially with reference to the right of an accusedto have the assistance of counsel in capital cases.
In that case, Stonebreaker, the petitioner, was held under sentences made on a plea of guilty to four separate indictments charging armed robbery. Twenty years of age, ignorant and unfamiliar with court procedure, and uninformed as to his...
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...necessity for the appointment do not appear and, clearly, the case was reversed on other grounds. Wade also relies upon McDorman v. Smyth, 188 Va. 474, 50 S.E.2d 423, 427, to support his contention that he was incapable of intelligently waiving his right to have counsel represent him. In th......
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