State ex rel. Stumbo v. Boles, No. 12366

• Court: Supreme Court of West Virginia
• Citation: 149 W.Va. 174,139 S.E.2d 259
• Docket Number: No. 12366
• Decision Date: 15 December 1964
• Parties: STATE ex rel. Jerry STUMBO v. Otto C. BOLES, Warden, West Virginia Penitentiary.

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139 S.E.2d 259 149 W.Va. 174 STATE ex rel. Jerry STUMBO
v.
Otto C. BOLES, Warden, West Virginia Penitentiary. No. 12366. Supreme Court of Appeals of West Virginia. Submitted Nov. 10, 1964.
Decided Dec. 15, 1964.

Syllabus by the Court

1. 'The right of one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial; therefore the safeguard of counsel, provided by the Sixth Amendment to the Constitution of the United States, is made obligatory upon the states by virtue of the due process clause of the Fourteenth Amendment.' Point 1, syllabus, State ex rel. May v. Boles, W.Va. [139 S.E.2d 177].

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[149 W.Va. 175] 2. 'Courts indulge every reasonable presumption against waiver of a fundamental constitutional right and will not presume acquiescence in the loss of such fundamental right.' Point 2, syllabus, State ex rel. May v. Boles, W.Va. [139 S.E.2d 177].

3. 'The right to the assistance of counsel, being a fundamental right, will not be presumed to have been waived by the failure of the accused to request counsel, by his entry of a guilty plea or by reason of a record silent on the matter of counsel.' Point 3, syllabus, State ex rel. May v. Boles, W.Va. [139 S.E.2d 177].

4. 'The general rule which presumes the regularity of court proceedings is subject to the qualification that, where the record is silent on the question, it can not be presumed that the accused waived his right to the assistance of counsel.' Point 4, syllabus, State ex rel. May v. Boles, W.Va. [139 S.E.2d 177].

5. 'One accused of a crime may waive his right to the assistance of counsel but such waiver must be made intelligently and understandingly.' Point 5, syllabus, State ex rel. May v. Boles, W.Va. [139 S.E.2d 177].

6. 'A judgment which is wholly void, or is void in part, is subject to collateral attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding.' Point 5, syllabus, State ex rel. Beckett v. Boles, W.Va. [138 S.E.2d 851].

7. 'A person imprisoned under a void sentence will be released from such imprisonment by a writ of habeas corpus.' Point 8, syllabus, State ex rel. Boner v. Boles, W.Va. [137 S.E.2d 418].

Timothy N. Barber, St. Albans, for relator.

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

HAYMOND, President.

This is an original habeas corpus proceeding instituted in this Court on July 17, 1964, in which the petitioner, Jerry Stumbo, seeks a writ to require the defendant, Otto C. Boles, [149 W.Va. 176] Warden of the West Virginia Penitentiary, to release him from the penitentiary where he is presently confined under an indeterminate sentence of one year to ten years, imposed by the Circuit Court of Logan County, West Virginia, on February 28, 1963. Upon the filing of the petition this Court issued a writ returnable September 15, 1964 and appointed counsel to represent the petitioner in this proceeding. After two continuances upon the joint motion of the attorneys representing the respective parties this proceeding was submitted for decision on November 10, 1964, upon the petition, the demurrer and the answer of the defendant, the affidavit of the petitioner, the separate affidavits of Delbert Browning, Walter Adkins, Malcum Davis, Lou Robinson, B. E. Stumbo, Ivan Hall and R. D. Walls, in support of the petition, and the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

At the January Term 1963 of the Circuit Court of Logan County, the petitioner and B. E. Skip Stumbo and Delbert Browning were jointly indicted by the grand jury of that county for a felony. The indictment in three separate counts charged that the named defendants on the 11th day of September 1962, in Logan County, in the nighttime, did unlawfully and feloniously break and enter a certain building in that county, belonging to a named person and not being a dwelling house or an adjoining outhouse, with intent to steal, take and carry away certain designated goods and chattels of the owner, of the value of $86.00; on the same date did also unlawfully and feloniously enter, without breaking, the same building, with intent to steal, take and carry away certain designated goods and chattels of the owner, of the value of $86.00; and on the same date did also unlawfully and feloniously steal,

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take and carry away certain designated goods and chattels of the owner, of the value of $86.00. On January 18, 1963, the petitioner was arraigned and entered a plea of guilty to the indictment and on February 28, 1963, he was sentenced to...