State ex rel. Toney v. Mills

• Decision Date: 17 March 1959
• Docket Number: No. 11053,11053
• Citation: 107 S.E.2d 772,144 W.Va. 257
• Parties: STATE ex rel. Donald C. TONEY v. Okey A. MILLS, Sheriff of Raleigh County.
• Court: West Virginia Supreme Court

Page 772

107 S.E.2d 772

144 W.Va. 257

STATE ex rel. Donald C. TONEY v. Okey A. MILLS, Sheriff of Raleigh County.

No. 11053.

Supreme Court of Appeals of West Virginia.

Submitted March 10, 1959.

Decided March 17, 1959.

Syllabus by the Court

1. 'Where jurisdiction of a court of limited jurisdiction has been properly established, either by the recital in the record of the necessary jurisdictional facts, or by the aid of a presumption in favor of jurisdiction established by statute, its orders cannot be revised or altered by habeas corpus, and this applies to courts having juvenile jurisdiction under Chapter 49 of the Code. Habeas corpus cannot be used as a substitute for a writ of error or certiorari.' Point 3, Syllabus, Slater v. Melton, 119 W.Va. 259, 193 S.E. 185.

2. In a proceeding charging a juvenile with delinquency, where no request is made for counsel, the failure of the court to appoint counsel to represent the person charged will not render the proceeding void.

3. In a proceeding involving a charge of delinquency of a juvenile, based on an alleged disturbance of a free school, where the petition charges that the disturbance resulted from a telephone call made on a certain day, the proceeding is not rendered void by proof establishing that the call was made on the day alleged, and that the disturbance resulting from the call occurred on the morning of the following day.

William G. Thompson, Montgomery, for relator.

W. W. Barron, Atty. Gen., Anthony J. Sparacino, Pros. Atty., Raleigh County, Beckley, for respondent.

GIVEN, President.

Relator, State of West Virginia, at the relation of Donald C. Toney, on February 19, 1959, filed its petition against respondent Okey A. Mills, Sheriff of Raleigh County, praying that a writ of habeas corpus ad subjiciendum issue against respondent, directing the release from custody of John Arthur Toney, an infant over fourteen years of age, son of Donald C. Toney. The petition alleges, in effect, that the juvenile Court of Raleigh County had imposed a sentence on the infant without having obtained jurisdiction of the person of the infant, that no record of any hearing on any charge against the infant existed, and that the infant, or person having legal custody of the infant, had been given no notice of any hearing on any charge. An order was entered by this Court March 17, 1959, discharging the writ issued, and custody of the infant was remanded to respondent, and the reasons for the entry of the order are attempted to be stated in this opinion.

The answer of respondent alleges, in effect, that a petition had been filed in the Juvenile Court of Raleigh County charging that the infant 'did wilfully interrupt, molest and disturb free schools being lawfully carried on, by means of telephoning certain public officials that bombs had been placed in the local Woodrow Wilson High School and Beckley Junior High School'; that the juvenile court, after proper notice and hearing, on the 14th day of February, 1959, found the infant guilty of the charge of delinquency, and sentenced him 'at confinemenet in the Industrial School for Boys at Pruntytown, West Virginia, until he arrives at the age of twenty one years unless sooner discharged as provided by law'; and that by the order imposing the sentence, the infant was placed in the care and custody of respondent until transferred to the industrial school. Certified copies of the petition and the order are exhibited with the answer.

The replication to the answer alleges, in effect, that the infant was not legally arrested; that the statement of the infant admitting guilt was obtained by police officers by improper means; that the infant, or those having his legal custody, had no proper notice of the charge or of the hearing, and no opportunity to employ counsel; that no 'lawful' petition against the infant was ever filed; and that no guardian ad litem was appointed for the infant, as required by the statute. The replication says, however, that on the morning of the hearing the father 'and his wife went into the Judge's chambers, slected seats and the Judge inquired of the boy if he made the call. The boy replied that he did make the call, and that he was guilty * * *'.

The evidence conclusively establishes, principally by stipulation, that in the afternoon of February 12, 1959, the infant, over fourteen years of age, was directed by the principal of the school then being attended by him to go to the police station of the City of Beckley. The principal of the school had been requested by the city police to make the direction. On arrival at the police station the infant was detained until the arrival of other children from the school who were, apparently, supposed to have information as to the making of the telephone call concerning the bombs. Later the statement admitting guilt was made and signed by the infant. There is no material or substantial evidence that any improper conduct on the part of the police induced the making of the statement. The statement, exhibited with the answer, states that it was voluntarily made, and that 'On the night of February 9th, 1959, at approximately 9 P.M., I was at Bennetts Store at Calloway Heights and was talking to Gary Walker, John 'Pee-Wee' Mandeville, Harold Smith and Sammy Kessler and Gary Walker. Smith and Kessler dared me to make a phone call to the school and tell them that a bomb was planted in Junior High and Woodrow Wilson High School * * *. I left Bennetts Store at approximately 9:30 P.M. after telling them that I was going to go hime and make the call * * *. I asked information for the phone number of the City Police Station. After getting the number I called and told the girl, 'You better watch out because there is a bomb in Junior High and WWHS Schools.' I then hung up the phone and later on went to bed.'

The father testified that on the evening of the twelfth, he inquired of the judge of the juvenile court by telephone whether he could, on that evening, have the boy released from custody, but was told to come to the office of the judge on the following morning, which he did. The father, at no subsequent time, requested the judge of the juvenile court to release his son from legal custody. On arrival at the office of the judge the father was advised that the hearing would be at ten o'clock on the following day, February 14. The hearing was at the appointed hour, the father and mother of the infant being present, as well as the other juveniles implicated in the making of the telephone call, with one or both of the parents of each of them being present. Also present were the two city police officers who took the statement of the boy, a newspaper reporter and a minister. The probation officer of the juvenile court was in an adjoining room at the time of the hearing, and was called into the hearing room before the pronouncement of sentence. The mother testified that at the hearing the 'Judge began talking to the boys. He started by asking their name and age of each boy present. When he got to the last boy, which was John, he said 'and your name is John Toney,' and John said 'yes', and he said 'how old are you?' John said 'I am fourteen', and he said 'John, do you admit that you made the phone call to the law to tell them there was a bomb in both schools?' John said 'yes, sir.' He said 'you admit that you phoned them and told them there was a bomb in both schools,' and John said 'yes, sir' * * *'.

On the evening of the twelfth, after being informed that his son was held in custody, the father talked with an attorney in the City of Beckley concerning the detention of the boy. The attorney, however, was not employed to represent the boy and was not present at the hearing, though it appears probable that he visited the office of the juvenile judge at the time the father was in the offices, on the thirteenth, and inquired of the judge as to the time fixed for the hearing. None of the interested parties was represented by counsel at the hearing, and no request was made for an opportunity to employ counsel, or for any continuance of the hearing.

Though the order of the court imposing sentence recites that the 'court appointed D. C. Toney, Father, as guardian, ad litem to represent the defendant in this case and the defendant and said guardian ad litem each being present,' and though the name of the father, as 'Parent, Guardian or Custodian', was on the petition, it was stipulated 'that same was placed thereon by the Official Reporter for the Juvenile Court of Raleigh County without the prior consent or knowledge of the said D. C. Toney; that the true facts are that the presiding Judge of the Juvenile Court of Raleigh County did not by judicial pronouncement nor by advice of the bench or otherwise advise or instruct the said D. C. Toney that he had been appointed as guardian ad litem for his said son, and that the said D. C. Toney did not in fact appear or participate in the hearing held herein on the morning of February 14th in the capacity of...