State ex rel. Legg v. Boles, 12305

• Decision Date: 17 March 1964
• Docket Number: No. 12305,12305
• Citation: 135 S.E.2d 257,148 W.Va. 354
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. William C. LEGG, alias William C. Baldwin v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 257

135 S.E.2d 257

148 W.Va. 354

STATE ex rel. William C. LEGG, alias William C. Baldwin v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12305.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 1964.

Decided March 17, 1964.

Syllabus by the Court

1. A failure or refusal by a court to furnish an indigent defendant, upon proper request, with a transcript of the record of his trial to enable him to apply for an appeal constitutes a violation of such defendant's rights under the Fourteenth Amendment to the Federal Constitution; likewise, the failure or refusal of a court reporter to furnish such transcript, when ordered by the court to do so, constitutes such violation; and such refusal or failure renders void any sentence resulting from a trial on an indictment, or, as here, upon an information under the provisions of the habitual criminal statute.

2. "A petitioner in a habeas corpus proceeding upon whom punishment by imprisonment for life has been imposed, under Code, 61-11-19, may be relieved of the void portion of the punishment, but will not be discharged from serving the maximum terms provided by statute as punishment for the principal offenses.' Point 2, Syllabus, State ex rel. Medley v. Skeen, Warden, 138 W.Va. 409, 76 S.E.2d 146.' Point 3, Syllabus, State ex rel. Foster v. Boles, Warden, W.Va., 130 S.E.2d 111.

Stephen P. Meyer, Charleston, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Judge.

The petitioner, William C. Legg, alias William C. Baldwin, invoked the original jurisdiction of this Court by filing herein his petition praying for a writ of habeas corpus ad subjiciendum. On January 13, 1964, the writ was issued, returnable on February 4, 1964, and counsel was appointed to represent the petitioner. On the return day the Attorney General, appearing for the respondent, produced the petitioner and filed a return and demurrer to the petition. Also filed was a stipulation of facts signed by counsel for the parties hereto. The case was thereupon submitted for decision upon the aforesaid pleadings and stipulation of facts and upon the briefs and arguments of counsel.

At the January Term, 1963, of the Intermediate Court of Kanawha County, the petitioner was indicted for the crime of attempted murder. Upon his arraignment he entered a plea of guilty to the charge in the indictment. Thereafter, on March 28, 1963, the prosecuting attorney filed an information charging the petitioner with two prior felony convictions.

Having entered a plea of not guilty to the charges in the information, a jury was empaneled and the issue was tried. The jury found the petitioner to be the same person as that named in the information. On May 9, 1963, the petitioner's motion to set aside the verdict and grant him a new trial was overruled and he was sentenced to life imprisonment.

On July 15, 1963, the petitioner filed in the Intermediate Court of Kanawha County his petition requesting a free transcript of the record of his trial upon the information. This petition was prepared without the aid of counsel and stated as the reason for his request 'to seek an appeal in habeas corpus for U. S. Federal Constitutional Warrant to issue against the detention or writ of error from the Court's judgment of said conviction.' The court, on the same day, entered an order directing the court reporter to furnish the transcript to the petitioner without cost. Although the court reporter advised the petitioner by letter that he would forward to him the transcript by the latter part of August, such transcript was not supplied, or even prepared, until January 27, 1964. At that time the four months appeal period had expired and the transcript was of no avail.

It is the contention of the petitioner that he has complied with the provisions of Code, 1931, 51-7-7, as amended, relating to the acquiring of a transcript of a trial for the purpose of appeal, and that the court's failure to grant his request constitutes a denial of his constitutional rights under the Fourteenth Amendment.

The respondent readily admits that by virtue of the provisions of Code, 1931, 51-7-7, as amended, and a series of decisions by the Supreme Court of the United States, beginning with Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the refusal to furnish an indigent defendant a transcript of the record of his trial to enable him to apply for an appeal is a violation of the Fourteenth Amendment. It is asserted, however, by the respondent that the reason the petitioner did not receive the requested transcript in time to prosecute his appeal was due to the failure of the court reporter to furnish it after he was directed by the court to do so. He concludes therefrom that the State was not at fault and that there was not, therefore, a violation of any of the petitioner's constitutional rights. Cited in support of this proposition are United States v. Pate, 318 F.2d 559, and Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456. In the Pate case the court reporter was unable to locate his shorthand notes of the trial. The Court of Appeals for the Seventh Circuit held that no hostility or invidiousness was shown to exist on the part of the State, that it was impossible to produce the transcript, and that since the State was not at fault the petitioner's rights under the Fourteenth Amendment were not violated. In the Norvell case the defendant was convicted of murder in 1941. He did not appeal at that time and in 1956 moved that the court furnish him with a free stenographic transcript of his trial. The official reporter had died and no one was able to read his shorthand notes. The Supreme Court held that the petitioner was not deprived of any constitutional right because of the impossibility of furnishing the requested transcript, and for the further reason that although he had an attorney when convicted he failed to appeal such conviction at that time. Neither of these cases, in our opinion, is applicable to the case before us.

Although it may not have been written in the best form, Legg's petition for a transcript complied with the requirements prescribed in Code, 1931, 51-7-7, as amended. He stated therein that he desired the transcript for the purpose of prosecuting a writ of error in relation to his conviction. He set forth the grounds upon which he appeal or writ or error would be sought and in all respects complied with the requirements of the statute. In the recent case of State ex rel. Banach v. Boles, W.Va., 131 S.E.2d 722, this Court unequivocally held that a convicted defendant, upon complying with the statute, is entitled to a free transcript of the record of his trial for use in weeking an appeal. See also Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740. The fact that the petitioner in this case was charged by information instead of indictment is immaterial. He was nonetheless entitled to apply for an appeal. It is stated in Code, 1931, 58-5-1, that an appeal may be obtained from the Supreme Court of Appeals in any case involving one's freedom. Certainly, this petitioner, having been sentenced to life imprisonment under the information, is party to a case involving his freedom.

The only question with which we are confronted here is whether the failure of the court reporter to supply the transcript resulted in a violation of the petitioner's constitutional rights. The title of Chapter 51, Code of West Virginia, is 'Courts and their Officers'. Article 7 thereunder is designated 'Official Reporters'. Under the provisions of that article the judges of trial courts are authorized to appoint reporters to take and report any proceedings and testimony given in any case. In Section 1 of...