Scott v. Mohn, 14764

Decision Date15 July 1980
Docket NumberNo. 14764,14764
Citation165 W.Va. 393,268 S.E.2d 117
PartiesClarence L. SCOTT v. Richard G. MOHN, Superintendent West Virginia Penitentiary.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "If an accused person is plainly and fully informed in an indictment of the character and cause of the accusation against him, transposition of his name with that of his victim in the videlicet clause of the indictment is not a fatal defect." Point 2, Syllabus, State v. Furner, W.Va., 245 S.E.2d 618 (1978).

2. "In the determination of a claim that the accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment of the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Point 19, Syllabus, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

James M. Cagle, Charleston, for petitioner.

Chauncey H. Browning, Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Justice:

The petitioner, Clarence L. Scott, invoking the original jurisdiction of this Court, filed a petition for a writ of habeas corpus. We granted the writ and, his petition being filed in forma pauperis, counsel was appointed to represent him. The petitioner alleges that he was denied due process and equal protection of the law (1) by permitting trial and sentence on an allegedly void indictment and (2) by reason of ineffective assistance of counsel. The relief sought is denied.

The petitioner was indicted in the Circuit Court of Cabell County for the crime of armed robbery. The indictment was in the following language:

That Clarence Linwood Scott on the day of February, 1975, in the said County of Cabell, in and upon one James R. Thompson an assault did feloniously make, and he, the said James R. Thompson did then and there feloniously put in bodily fear, and one (1) blue check book, one (1) Sears Roebuck Company credit card, one (1) Penney's Company credit card, one (1) Sun Oil Company credit card, one (1) Union Seventy-six Company credit card, one (1) Exxon Company credit card, one (1) Gulf Oil Company credit card, one (1) Fifty Dollar ($50.00) Traveler's check, one (1) Twenty Dollar ($20.00) Traveler's check, one (1) United States silver dollar coin, one (1) Two Dollar bill of good and lawful United States currency and Fifteen Dollars ($15.00) good and lawful United States currency, all the property of the said James R. Thompson and lawfully in his control and custody, from the person of the said James R. Thompson and against his will, then and there feloniously and violently did steal, take and carry away, against the peace and dignity of the State.

Petitioner contends that the above indictment is void because the language appears to charge that the victim put himself in bodily fear. While the form of the indictment is somewhat archaic we note that the form very closely follows that suggested in Code 62-9-6, which provides:

An indictment for robbery shall be sufficient if it be in form, tenor or effect as follows: . . . That A . . ., on the . . . day of . . ., nineteen . . ., in the said county of . . . in and upon one B . . . an assault did feloniously make, and him, the said B . . . did then and there feloniously put in bodily fear . . .

In a recent case, State v. Furner, W.Va., 245 S.E.2d 618 (1978) this Court, speaking through Justice Harshbarger, dealing with a similar problem said in Point 2 of the Syllabus:

If an accused person is plainly and fully informed in an indictment of the character and cause of the accusation against him, transposition of his name with that of his victim in the videlicet clause of the indictment is not a fatal defect.

We find that the petitioner was fully and plainly informed of the character and cause of the accusation against him in the indictment in question here and deny relief on that ground.

The petitioner further claims that he had ineffective trial counsel. In State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), this Court said in Point 19 of the Syllabus In the determination of a claim that the accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error.

See also Carter v. Bordenkircher, W.Va., 226 S.E.2d 711 (1976); State v. Sims, W.Va., 248 S.E.2d 834 (1978); and State ex rel. Burton v. Whyte, W.Va., 256 S.E.2d 424 (1979).

In the instant case the petitioner pleaded guilty to unarmed robbery and was sentenced to 5-18 years in the state penitentiary. The depositions taken on behalf of the respective parties disclose that appointed counsel failed to contact...

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12 cases
  • State v. Davis
    • United States
    • West Virginia Supreme Court
    • 25 Marzo 1986
    ...pt. 1, Carrico v. Griffith, 165 W.Va. 812, 272 S.E.2d 235 (1980); Syl. pt. 3, State v. Foddrell, supra note 12; Syl. pt. 2, Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980); State v. Watson, 164 W.Va. at 649, 264 S.E.2d at 632-33; Syl. pt. 2, State v. Bradley, 164 W.Va. 68, 260 S.E.2d 83......
  • State v. Hatfield
    • United States
    • West Virginia Supreme Court
    • 26 Enero 1982
    ...Syllabus Point 4, State v. Key, W.Va., 275 S.E.2d 924 (1981); State v. Demastus, W.Va., 270 S.E.2d 649 (1980); Syllabus Point 2, Scott v. Mohn, W.Va., 268 S.E.2d 117 (1980); Syllabus Point 1, Carter v. Bordenkircher, W.Va., 226 S.E.2d 711 In Scott v. Mohn, supra, we elaborated on certain gu......
  • State v. Manns
    • United States
    • West Virginia Supreme Court
    • 18 Abril 1985
    ...the trial, and offered approximately seventy defense instructions. They easily met our competent counsel test set out in Scott v. Mohn, W.Va., 268 S.E.2d 117 (1980), which relied on Syllabus Point 19 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Finding no error, the judgment of......
  • State v. Glover
    • United States
    • West Virginia Supreme Court
    • 27 Marzo 1987
    ...272 S.E.2d 235, 238 (1980); Carter v. Bordenkircher, 159 W.Va. 717, 722, 226 S.E.2d 711, 715 (1976). Similarly, in Scott v. Mohn, 165 W.Va. 393, 268 S.E.2d 117 (1980), this Court listed counsel's conducting or failure to conduct a proper investigation of the facts and the law in preparation......
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