Penn v. Smyth

• Decision Date: 11 October 1948
• Court: Virginia Supreme Court
• Parties: PENN. v. SMYTH, Superintendent of Penitentiary.

188 Va. 367

49 S.E.2d 600

PENN.

v.SMYTH, Superintendent of Penitentiary.

Supreme Court of Appeals of Virginia.

Oct. 11, 1948.

Error to Hustings Court of City of Richmond, Part II; M. Ray Doubles, Judge.

Habeas corpus proceeding by John Henry Penn against Frank W. Smyth, Jr., Superintendent of the Virginia State Penitentiary, to test a conviction of armed robbery. To review the judgment, petitioner brings, error.

Judgment affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for defendant in error.

STAPLES, Justice.

In this case we are called upon to review an order of the Hustings Court of the City of Richmond, Part II, which denied the prayer of a petition for a writ of habeas corpus by which the plaintiff in error, who was the petitioner and hereinafter willbe so referred to, challenged the validity of a judgment of the Hustings Court of said city (Part I).

The background of the case and the questions raised by the petition are concisely set forth in the opinion of the learned judge of the trial court as follows:

"The petitioner, John Henry Penn, together with W. L. Crutchfield and Joseph Hubbard, was convicted on September 10, 1946, in the Hustings Court of the City of Richmond on two charges of armed robbery and sentenced to a total of twenty-five years imprisonment. He has filed a petition in this court for a writ of habeas corpus, and in response to a rule issued by the court upon the Superintendent of the Penitentiary to show cause why the writ should not issue, the respondent has filed his answer.

"The petition and exhibits attached thereto show that the petitioner, age 20, Crutchfield, age 18, and Hubbard, age 19, were each indicted on two indictments charging them respectively with armed robbery of (1) T. C. Saunders and (2) Wesley Walden. These indictments were returned on September 3, 1946. The mother of the petitioner employed an attorney to represent the petitioner. It is alleged that this attorney was subsequently employed by the other two defendants, Crutchfield and Hubbard, to represent them also. The three defendants entered pleas of 'Not Guilty', trial by jury was waived, and at their trial on September 10, 1946, before the court without a jury they were found guilty and each defendant was sentenced to fifteen years imprisonment on the first charge and ten years imprisonment on the second charge. The petition states that all three defendants testified, and that the petitioner testified that 'he had no part in the robberies', but that he was convicted upon the perjury of Hubbard and Crutchfield.

"The petitioner seeks his release on habeas corpus from these convictions on the grounds that his attorney was incompetent, inexperienced, rushed headlong into the trial without preparation or conference with the petitioner, and that by representing the other two defendants he represented interests conflicting with those of the petitioner. It is alleged that the petitioner's trial was 'shocking' and a 'sham', and that the court should have intervened on behalf of the petitioner. * * * the petitioner * * * has filed an amendment to his petition alleging his ignorance of court proceedings and his illiteracy, thus purporting to excuse himself from calling to the attention of the court the alleged conflicting interests being represented by his counsel."

The only allegation of the petition with respect to the incompetency of his counsel is that said counsel "possessed none of the cardinal requisites above held to be essential by the Supreme Court of the United States" in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. The petitioner alleges that these essential requisites are that said counsel shall be "competent and able" and "experienced in the conducting of a criminal case."

The petition, however, does not allege any facts which would support the opinion or conclusion therein expressed that the attorney did not possess these requisites. It does not undertake to set forth the length of time petitioner's counsel had been engaged in the practice of the law, or the number of criminal cases he had been engaged in the trial of, or any other fact which would justify a finding that he was not competent. It is elementary that a petition of this nature must allege facts and that mere conclusions or opinions of the pleader will not suffice to make out a case. 39 C.J.S., Habeas Corpus, § 80, p. 627.

But in any event the trial court was not called upon to inquire into the ability of counsel chosen and employed by the petitioner. In fact, such action on the part of the court, so far as this record shows, would have been an unwarranted interference with petitioner's right to be represented by counsel of his own choosing.

The petitioner asserts, in effect, that he has not been afforded capable and adequate representation by competent counsel, and that this amounts to a denial of due process of law. This is a Federal question and the views of the Supreme Court of the United States with respect thereto are controlling. There has been no express decision by that court of the question in a prosecution where the accused selected his own counsel, but the denial of a writ of certiorari (324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427) in the case of Andrews v. Robertson, 5 Cir., 145 F.2d 101, 102, is significant. In that case, although the District Court found that Andrews' counsel, on account of then existing physical condition and emotional upset, "was not able to afford the defendant any very capable representation, " it, nevertheless, concluded that this did not amount to a denial of due process. That court was unable to find that such representation amounted to a nullity, but held that, Andrews' counsel having been chosen by him and permitted to represent him, the constitutional mandate was satisfied. In affirming the denial of a writ of habeas corpus, the opinion of the Circuit Court of Appeals said:

"We approve. In the absence of proof of such mental incapacity as flows from an unsound mind, on the part of defendant or his chosen counsel, in such circumstances, this Court cannot say that due process of law was denied defendant, or that the State Court lost jurisdiction of the case.

"The State Court has no right under the Constitution, to deny a defendant the right to counsel of his own choosing. Such Court could not be put in error for proceeding to try a defendant when he was represented by such counsel, which is to say that that Court should not be put in error for doing that which it had no right to refuse to do, * * *." 145 F.2d 102.

Petitioner further claims that his counsel proceeded with the trial of his case without consulting with him, and that this constituted denial of due...