Owsley v. Cunningham, Misc. No. 3450.

• Citation: 190 F. Supp. 608
• Decision Date: 27 January 1961
• Docket Number: Misc. No. 3450.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lon O. OWSLEY, Petitioner, v. W. K. CUNNINGHAM, Jr., Superintendent, Virginia State Penitentiary, Respondent.

190 F. Supp. 608

Lon O. OWSLEY, Petitioner, v. W. K. CUNNINGHAM, Jr., Superintendent, Virginia State Penitentiary, Respondent.

Misc. No. 3450.

United States District Court E. D. Virginia, Norfolk Division.

January 27, 1961.

COPYRIGHT MATERIAL OMITTED

Lon O. Owsley, pro se.

WALTER E. HOFFMAN, District Judge.

Petitioner, a state prisoner having exhausted his state court remedies, seeks relief by way of habeas corpus in this Court. The facts are not in dispute and, from the petition, we learn that petitioner was convicted by different juries in separate trials for robbery and murder on January 10, 1957, and May 1, 1957, respectively. In each case a verdict of life imprisonment was imposed by the jury, and the sentence followed. The trials were conducted in the Circuit Court of Rockingham County, Virginia, and no appeal on the merits was sought from said final judgments. Petitioner was represented by court-assigned counsel and, as petitioner states in his brief:

"The Petitioner's Attorney gave him excellent representation in the original trial, but it was his duty to give him representation in and on the appeal."

While the contentions now advanced by petitioner are numerous, the majority may be summarily disposed of as follows:

(1) The jury verdict in the robbery charge, which was first tried, fixed the punishment "By confinement for life." Petitioner insists that the verdict is void for the reason that the jury failed to use the words "At confinement". There was no objection to the form of the verdict; petitioner cites no authority to support his argument; and, indeed, the point is frivolous and need not be considered further.

(2) On the day of the trial of the robbery case, the trial court, over petitioner's objection, granted leave to amend the indictment, and thereafter refused petitioner's motion for a continuance. The indictment as returned by the grand jury provided that petitioner "unlawfully, feloniously, and maliciously did shoot and wound the said Robert Fishback and against his will, violently and feloniously did take, steal and drive away one 1951 Model Buick automobile, of the approximate value of $700.00, the property of one James Crawford then and there in the lawful possession of the said Robert Fishback." In amending the indictment the words "violently and" were eliminated and, in lieu thereof, the words "and, by means of such violence" were substituted. In addition, the words "and immediate" were inserted after the word "lawful" to the end that this portion of the indictment as amended read "and then and there in the lawful and immediate possession." There is no merit to petitioner's argument. The statutes of Virginia permit an amendment so long as the nature of the offense is not changed. Code of Virginia, 1950, §§ 19-150, 19-151 (Now §§ 19.1-176, 19.1-177); Snead v. Smyth, 4 Cir., 273 F.2d 838; Livingston v. Commonwealth, 184 Va. 830, 36 S.E.2d 561. The matter of a continuance rested within the sound discretion of the trial court and is not reviewable on habeas corpus. The amendment of an indictment for robbery on the day of trial has been declared proper in Brookman v. Commonwealth, 151 Va. 522, 145 S.E. 358.

(3) It is urged that petitioner was not present during all of the proceedings prior to the actual trial. Specifically, he contends that he was not present when his court-assigned counsel moved that petitioner be committed for observation and report and, following a denial of this motion, moved that the Board of Supervisors be required to pay for the services of a psychiatrist to examine the accused. Assuming, arguendo, that petitioner was entitled to be present at the time of the presentation and argument of these motions¹ and assuming further, but without deciding, that the action by the state court on said motions affected the interest of the petitioner², which is apparently the test for determining whether the statute has been violated, this does not bring into focus the due process clause of the Fourteenth Amendment. There may have been some error in the state court practice and procedure, but the federal court is only interested in whether there has been a denial of due process as guaranteed by the federal constitution. For a full discussion of this subject, with particular reference to the failure of the accused to be present during all proceedings in the state court, see the opinion of Judge Parker in Sanderlin v. Smyth, 4 Cir., 138 F.2d 729, 732. As said by Justice Cardozo in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 107, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674, 90 A.L.R. 575:

"So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."

There is no suggestion that petitioner's able counsel requested the presence of the accused at the time of the hearing on the motions indicated herein. No error was assigned to the action of the trial court in considering and ruling on the motions in the absence of the accused. Under the facts and circumstances alleged, no federal question is presented.

(4) It is alleged in the petition that his court-appointed counsel was under a duty to appeal the cases to the Supreme Court of Appeals of Virginia. The bare allegation is made that "said attorney led the petitioner to believe that a writ of error would be applied for." Where the record shows that petitioner was competently represented and there is no substantiation of his general allegation, no hearing is required. Brown v. Smyth, 4 Cir., 271 F.2d 227. Moreover, it is a settled principle of law that the right of appeal is not essential to due process of law. Standard Oil Co. of Indiana v. State of Missouri, 224 U.S. 270, 286-287, 32 S.Ct. 406, 56 L.Ed. 760. Rehearings and new trials are not essential to due process of law, either in judicial or administrative proceedings. James v. Appel, 192 U.S. 129, 137, 24 S.Ct. 222, 48 L.Ed. 377. The failure of petitioner to make suitable arrangements to appeal a conviction is insufficient ground to grant a writ of habeas corpus. Schechter v. Waters, 10 Cir., 199 F.2d 318. This circuit has held, even with a federal prisoner where there is an absolute right of appeal, that the failure of an attorney to note and perfect an appeal affords no right to a hearing under 28 U.S.C.A. § 2255. Dennis v. United States, 4 Cir., 177 F.2d 195. No constitutional question is raised by the failure to perfect an appeal.

(5) A claim of error is made with respect to the introduction in evidence of an ex parte statement taken by a court reporter. We are not advised as to the content of said statement and, of course, no constitutional question is presented. McCoy v. Tucker, 4 Cir., 259 F.2d 714.

(6) We are told that petitioner was tried twice for the same offense. His theory is that the acts of robbery and murder were committed at the same time and, therefore, constitute but one offense. It is true that under Virginia law, murder in the commission of, or attempt to commit, robbery constitutes murder in the first degree. Code of Virginia, 1950, § 18-30 (now § 18.1-21). Under the provisions of § 19-232 (now § 19.1-259) of the Code of Virginia, 1950, if the same act be a violation of two or more statutes, conviction under one of such statutes shall be a bar to a prosecution or proceeding under the other statute. These contentions were raised by petitioner at the time of his trial for murder—he having been previously convicted for robbery—and decided adversely to petitioner. The test of the identity of acts is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make it the same act under two or more statutes. Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d 336. The problem of relentless prosecutions as suggested in the dissent in Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, is not in issue, as it was the petitioner here who requested, and was granted, a severance of trials. The question is essentially one of state court determination to be ascertained on direct appeal. Additionally, the two indictments required proof of a different nature. The indictment for murder followed the statutory short form, and did not allege that the murder was committed while the accused was in the act of committing, or attempting to commit, robbery. Thus it follows that the proof required to sustain convictions under the two indictments was entirely different.

We turn, finally, to a discussion of the contention that petitioner was denied due process of law by reason of the state court action in declining to commit petitioner for observation and report at a state mental institution for the criminally insane, and for thereafter refusing to provide for compensation of a psychiatrist to examine the accused. Under the assumption that no qualified person testified as to the petitioner's mental competency at the time of trial, this problem is approached. The petition does not allege that the issue of insanity was raised at the trial. He states in his brief accompanying his petition that he had previously been confined to a home for the feeble-minded and illiterate. If petitioner raised the defense of insanity at the trial, he has then been accorded a full hearing on this question and cannot review it by way of habeas corpus. If, however, he did not interpose the defense of insanity, we approach a more serious problem.

In an increasing number of instances state prisoners seek relief by way of habeas corpus in the federal court alleging (1) insanity at the time of the commission of the offense, (2) insanity at the time of trial, or (3) both of the above. In the majority of cases bare allegations are made, and we are met with the question of determining whether or not a plenary hearing should be granted. If...