Newsom v. Smyth, 7747.

• Decision Date: 05 December 1958
• Docket Number: No. 7747.,7747.
• Citation: 261 F.2d 452
• Parties: Stuart W. NEWSOM, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

261 F.2d 452 (1958)

Stuart W. NEWSOM, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.

No. 7747.

United States Court of Appeals Fourth Circuit.

Argued November 3, 1958.

Decided December 5, 1958.

H. B. Mutter, Baltimore, Md. (Walter E. Black, Jr., Baltimore, Md., on brief), court-appointed counsel, for appellant.

Stuart W. Newsom, pro se, on brief.

Thomas M. Miller, Asst. Atty. Gen. of Virginia (A. S. Harrison, Jr., Atty. Gen. of Virginia, on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

By a petition for a writ of habeas corpus, this state prisoner sought a hearing upon questions previously fully litigated in the state courts. He now undertakes an appeal to this Court without a certificate of probable cause. In accordance with our usual practice, we have examined the record and have considered the written and oral arguments of court-appointed counsel, but, finding no merit in the prisoner's contentions, the appeal will be dismissed for want of the certificate of probable cause. Presley v. Peppersack, 4 Cir., 227 F.2d 325; Parker v. Warden, Maryland Penitentiary, 4 Cir., 198 F.2d 72; Tyson v. Swenson, 4 Cir., 198 F.2d 308; Hanson v. Warden, Maryland Penitentiary, 4 Cir., 198 F.2d 470; Hobbs v. Swenson, 4 Cir., 199 F.2d 268; Harris v. Swenson, 4 Cir., 199 F.2d 269; Cumberland v. Warden, Maryland Penitentiary, 4 Cir., 227 F. 2d 310.

The principal contentions arise out of the circumstances surrounding receipt of the verdict in the trial court. The defendant was tried upon an indictment for murder, and the jury brought in a verdict in the following form:

"The unanimous decision of the Jury is Life imprisonment.

R. H. Harvey — Foreman."

The trial judge refused to accept the verdict in that form, but rewrote the verdict in the following language:

"We the jury on the issues joined find the defendant guilty of murder in the first degree as charged in the indictment and fix his punishment at life imprisonment in the penitentiary."

The foreman of the jury signed the revised form of the verdict.

The prisoner contends that one of the jurors had absented himself at the time the irregular verdict was submitted and the revised form of the verdict was signed by the foreman of the jury. In support of his contention, he points to the final order which listed the names of only eleven jurors. Thereafter, however, a motion was filed in the original criminal proceeding to correct the record by adding the name of one Kendrick Duncan to the list of jurors. A hearing was had pursuant to an order to show cause, at which the defendant and his court-appointed counsel were both present. Testimony was taken and, thereafter, an order was entered "nunc pro tunc," as of the date of the original final order, adding the name of Duncan to the list of jurors and correcting what was found to have been an inadvertent omission in the preparation of the original order. There had been doubt under the laws of the State of Virginia of the power of a trial court of that State thus to correct inadvertent omissions in its records, but that doubt was removed by the decision of the Supreme Court of Appeals of Virginia in Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245. The inadvertent omission of the name of one juror in the final order, after correction, does not preclude the subsequent finding based upon abundant evidence, that all twelve jurors were in fact present at all relevant times during the trial. Council v. Commonwealth, supra; C. C. Bradley v. W. Frank Smyth, Jr., 4 Cir., 255 F.2d 45.

Thereafter, upon petition for a writ of habeas corpus in the state court, a further hearing was held before another judge during which the prisoner was contending, among other things, that the twelfth juror was not present and that the revised form of the verdict was not affirmed by the jury as a whole. Again, the defendant was present in person and was represented by counsel. The state court found from the testimony...