State ex rel. Favors v. Tucker, 10905

• Decision Date: 19 November 1957
• Docket Number: No. 10905,10905
• Citation: 143 W.Va. 130,100 S.E.2d 411
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Henry Hinton FAVORS v. E. H. TUCKER, Warden, West Virginia Penitentiary, Successor to Ira M. Coiner, Warden. Case

Page 411

100 S.E.2d 411

143 W.Va. 130

STATE ex rel. Henry Hinton FAVORS v. E. H. TUCKER, Warden, West Virginia Penitentiary, Successor

to Ira M. Coiner, Warden.

Case No. 10905.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 4, 1957.

Decided Nov. 19, 1957.

Syllabus by the Court

1. An accused is not deprived of due process of law under the Fourteenth Amendment of the Constitution of the United States by a criminal conviction procured by the state prosecuting authorities upon testimony which may be perjured and false, but unknown by such authorities to have been either perjured or false.

2. The appointment by a trial court of the same attorney to represent two defendants indicated for the commission of the same crime is not in itself improper unless the facts and circumstances show that the interests of the two defendants are in conflict but the fact that one of such defendants pleads guilty and the other not guilty does not conclusively show such a conflict in the interests of the parties as to cause a loss of jurisdiction by the trial court which will render a conviction of a defendant so represented void as being in violation of the Sixth Amendment to the Constitution of the United States and of Section 14 of Article III of the Constitution of West Virginia, and a writ of habeas corpus will not lie for the release of the one so convicted.

George W. Stokes, Charleston, for relator.

W. W. Barron, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for respondent.

DUCKER, Judge.

The relator, Henry Hinton Favors, filed his petition, under the original jurisdiction of this Court, for a writ of habeas corpus ad subjiciendum against Ira M. Coiner, Warden of the West Virginia Penitentiary, now against E. H. Tucker, as Successor Warden, alleging that he had been illegally tried and convicted in September, 1953, in the Intermediate Court of Kanawha County for the crime of robbery by force and violence of one Frank Alesci and Tony Franklin in Charleston, West Virginia, on August 16, 1953, and sentenced on October 28, 1953 to serve twenty-five years in the state penitentiary. On March 5, 1956, this Court denied the writ, and on April 29, 1957, 353 U.S. 944, 77 S.Ct. 824, 1 L.Ed.2d 855, upon relator's petition for a writ of certiorari granted by the Supreme Court of the United States, 352 U.S. 987, 77 S.Ct. 389, 1 L.Ed.2d 987, that Court, as agreed to by the Attorney General of West Virginia, remanded this case to this Court for the purpose of determining the truth of the allegations contained in relator's petition for a writ of habeas corpus, whereupon, this Court, on June 7, 1957, awarded a writ of habeas corpus, returnable to June 18, 1957, and continued the same until September 4, 1957 for the taking in the meantime of testimony for submission of the case for decision on depositions so taken and on briefs and oral argument of counsel.

The substantial allegations of the relator's petition are: (1) that his present sentence is invalid because, contrary to the West Virginia and United States Constitutions, in effect he was convicted without counsel in that the court appointed and relator was represented by the same counsel as was appointed to and did represent the co-defendant who had entered a plea of guilty of the same crime with which he and such co-defendant were indicted, and such representation by the same counsel was inconsistent with proper representation of relator, and that by reason of such inconsistent representation, the court lost jurisdiction of the case, and (2) that the court should have 'scratched from the records' the false testimony of George Head, J., who was also indicated for the same robbery, and who had previously pleaded guilty, and who changed his testimony during the trial of the relator from first saying that relator was not with him to later saying that relator was with him at the time of the robbery for which both relator and Head were indicated. Relator also complains of the fact that George Head, Jr. was sentenced to only ten years imprisonment on his plea of guilty but relator received a twenty-five year sentence, and that relator was arrested without a warrant, but these points are not seriously relied on by relator, and cannot, we think, be considered as having any substance or as being worthy of serious consideration here.

By order of this Court, George W. Stokes, of South Charleston, West Virginia, a member of the Bar of this Court, was appointed to represent the relator in this proceeding, and pursuant to the issuance of the writ, did so represent him in the taking of depositions and in briefs and oral argument for the submission of the same on the return day of the writ as continued.

In addition to the evidence taken at the trial of relator in the Intermediate Court of Kanawha County, a transcript of which was by stipulation of counsel made a part of the record in this proceeding, the testimony of the several witnesses with knowledge of the facts alleged in the petition of the relator was duly taken and the transcript thereof filed in this Court for the determination of the issues raised, and from the evidence the following facts appear:

In the Intermediate Court of Kanawha County, at its September, 1953, Term, at which the relator, Henry Hinton Favors and one George Head, Jr. were indicted jointly for the crime of robbery, the court appointed William L. Lonesome, an attorney, to represent both defendants. Prior to the trial of the relator, the defendant, George Head, Jr. pleaded guilty, and while awaiting sentence, the relator, having pleaded not guilty, was found guilty and sentenced to confinement for twenty-five years in the West Virginia Penitentiary. The facts that the same attorney was appointed to defend both defendants and that relator's co-defendant had pleaded guilty, a situation which relator now claims rendered such counsel's services inconsistent and conflicting with the right of relator to have effective assistance and representation by counsel in his defense, are the principal bases upon which relator relies in support of his petition herein. In order to apply the legal principles involved in this case, it is necessary to review and to some extent summarize the evidence before us.

The relator, Henry Hinton Favors, testified in the main as follows: that he requested the Trial Judge, William J. Thompson, to appoint Attorney J. Raymond Gordon to defend him, that William L. Lonesome 'didn't have interest in my case, he thought I was guilty and J. Raymond Gordon was interested'; that 'Mr. Lonesome had yet to get ten years for George Head, Jr., and therefore he had to get me more time in order to get George Head, Jr. a ten year sentence'; that 'William L. Lonesome won't help me, he wants me to plead guilty to a crime I don't know nothing about'; that no other counsel was given him; that George Head, Jr. testified that relator was not with him on the night of August 17th when he robbed the Strand Shoe Shop at 606 Court Street, Charleston, and that after Head so testified, the prosecutor asked for a fifteen minute recess; that conversations took place between the prosecutor, the judge, and the police officers and George Head, Jr., but relator did not overhear the conversations; that George Head, Jr. had told him he signed some blank papers, that Head hadn't told him that he (Head) had told police that relator was involved in the crime with him; that Attorney Lonesome told him to plead guilty, that relator had a record and would probably get life; that Attorney Lonesome should have objected to the recess and should have cross-examined Head more than he did; that relator didn't talk to Head about the trial except that Head said he (Head) hadn't done anything and then on October 23 Head pleaded guilty; that Lonesome told Head 'I can get you probation because you don't have a bad record, and he told me I can't get you lower than 10 years'.

George Head, Jr. testified in substance as follows: that he was sentenced to ten years imprisonment after relator was sentenced; that his counsel, Lonesome, told him to plead guilty, that Lonesome would get his sentence as light as he could; that he signed a piece of paper as to what he said about the robbery but he didn't know what he was doing; that he was 'kind of scared', and 'I was going to try to get off as light as I could'; that Sergeant Fisher said if he would be truthful it would go easier on him, and that he would get life out of it if he didn't tell the truth; that he and relator had not discussed at any time before the trial statement made by him to police; that on direct examination he refused or failed to identify relator as being at the scene of the crime; that a recess in the trial of relator was taken and the prosecutor, Sergeant Fisher and another person took him back 'in the little room', and Sergeant Fisher told him he would 'get life about lying in the courtroom'; that he was lying when he told the court and jury that relator was with him at the scene of the crime; that he had told Attorney Lonesome that he was guilty and had robbed the victims and that it was after that that Attorney Lonesome advised him to plead guilty; that it wasn't blank piece of paper that he signed; that as to his education he had been in the ninth grade of school but that he couldn't read; that he wasn't scared of the prosecution, wasn't harmed in any way, was not threatened and wasn't forced to sign the statement; that the prosecutor threatened him 'with life if he didn't go out there and tell the truth'; that they told him to 'get on the stand and tell just what happened'; and that he and relator talked to each other in the jail cell about what defense he would 'take' in this case.

Herbert W. Bryan, assistant prosecuting attorney of Kanawha County, who conducted the prosecution of the robbery charge against the relator, testified to the following effect: that he didn't recall talking to relator before the...