State ex rel. Massey v. Boles, No. 12407

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Citation140 S.E.2d 608,149 W.Va. 292
PartiesSTATE ex rel. George H. MASSEY, Jr. v. Otto C. BOLES, Warden, West Virginia Penitentiary.
Decision Date09 March 1965
Docket NumberNo. 12407

Page 608

140 S.E.2d 608
149 W.Va. 292
STATE ex rel. George H. MASSEY, Jr.
v.
Otto C. BOLES, Warden, West Virginia Penitentiary.
No. 12407.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 16, 1965.
Decided March 9, 1965.

Syllabus by the Court

1. The general rule is that there is a presumption of regularity of court proceedings;

Page 609

it remains until the contrary appears and the burden is on the person who alleges such irregularity to affirmatively show it.

2. Where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law, with the exception of the right to the assistance of counsel which is a fundamental right specifically provided for in the State and Federal Constitutions, and this right will not be presumed to have been waived.

[149 W.Va. 293] C. R. Hill, Jr., Fayetteville, for relator.

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

BERRY, Judge.

The petitioner, George H. Massey, Jr., filed this habeas corpus proceeding in this Court under its original jurisdiction, and seeks to have the sentence imposed upon him under the recidivist statute corrected. It is the contention of the petitioner that he was not duly cautioned before the imposition of the additional sentence of five years as required by the mandatory provisions of Code, 61-11-19, as amended. A writ was issued by this Court on December 11, 1964, returnable February 16, 1965, and counsel was appointed to represent the petitioner.

The defendant filed a return and demurred to this petition. The case was submitted for decision upon arguments and briefs on February 16, 1965.

The petitioner was indicted at the July, 1959, term of the Circuit Court of Fayette County, West Virginia, for the crime of murder. He pleaded guilty to second degree murder, which carries a sentence of five to eighteen years. After being sent to the Weston State Hospital for psychiatric examination and being found to know right from wrong, he was returned to the Circuit Court of Fayette County and the prosecuting attorney filed an information setting forth a previous conviction for a felony in Kanawha County in 1954, all of which was done at the same term of Court. The trial court ascertained that the petitioner was the same person mentioned in the information, and thereupon sentenced him to five to twenty-three years in the penitentiary.

The court order is silent as to whether the petitioner was duly cautioned, and the question is presented as to whether it can be presumed that the trial court performed its duty [149 W.Va. 294] as required by law before sentencing the petitioner. It is the contention of the petitioner that it must affirmatively appear from the record that he was duly cautioned, whereas, the defendant contends that 'duly cautioned' is a statutory requirement and not a constitutional one such as the right to the assistance of counsel.

It has been held that the...

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17 practice notes
  • State ex. rel. Roger L. Bowers v. McBride, No. 101458
    • United States
    • Supreme Court of West Virginia
    • February 25, 2011
    ...irregularity existed." Syl. Pt. 2, State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d.608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption ......
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...irregularity existed." Syl. Pt 2, State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d 608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption o......
  • Miller v. Boles, No. 468-E.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 23, 1965
    ...W.Va.Const., Art. 8, § 12; W.Va.Code Ann. § 5196 (1961 ed.). 51 W.Va.Code Ann., § 5787 (1961 ed.). 52 See State ex rel. Massey v. Boles, 140 S.E.2d 608, at 610 (W.Va., 53 State ex rel. May v. Boles, 139 S.E. 2d 177 (W.Va.1964). 54 State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...provided for in both the State and Federal Constitutions. 15 R.C.L., Judgements, Section 373; State ex rel. Massey v. Boles, Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case......
  • Request a trial to view additional results
17 cases
  • State ex. rel. Roger L. Bowers v. McBride, No. 101458
    • United States
    • Supreme Court of West Virginia
    • February 25, 2011
    ...irregularity existed." Syl. Pt. 2, State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d.608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption ......
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...irregularity existed." Syl. Pt 2, State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d 608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption o......
  • Miller v. Boles, No. 468-E.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 23, 1965
    ...W.Va.Const., Art. 8, § 12; W.Va.Code Ann. § 5196 (1961 ed.). 51 W.Va.Code Ann., § 5787 (1961 ed.). 52 See State ex rel. Massey v. Boles, 140 S.E.2d 608, at 610 (W.Va., 53 State ex rel. May v. Boles, 139 S.E. 2d 177 (W.Va.1964). 54 State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...provided for in both the State and Federal Constitutions. 15 R.C.L., Judgements, Section 373; State ex rel. Massey v. Boles, Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case......
  • Request a trial to view additional results

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