State v. Holland

• Decision Date: 13 July 1965
• Docket Number: No. 12418,12418
• Citation: 143 S.E.2d 148,149 W.Va. 731
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Richard HOLLAND.

Page 148

143 S.E.2d 148

149 W.Va. 731

STATE of West Virginia v. Richard HOLLAND.

No. 12418.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1965.

Decided July 13, 1965.

Syllabus by the Court

1. The constitutional protection against double jeopardy may be waived by an accused; and where although he has pleaded guilty to the charge a new trial is obtained through his own initiative he cannot claim that the former proceedings constituted prior jeopardy, since the plea of guilty and the subsequent proceedings thereon have been held null and void, and he was consequently not in legal jeopardy at the time it was entered.

2. Where a conviction and sentence are set aside and held to be void by motion of the defendant in the trial court, by an appeal, or by habeas corpus proceedings, double jeopardy is not applicable because in each instance it is waived and there is no inhibition to another trial for the same offense.

3. Code, 62-3-21, as amended, requiring that an accused be tried within three of court from the finding of the indictment, with certain exceptions, is not applicable where a defendant, after entering a plea of guilty, is sentenced to the penitentiary and later institutes a habeas corpus proceeding, and as a result thereof the conviction and sentence are held to be void, because he could not be tried again while he was confined in the penitentiary and the statute had been satisfied at the first trial.

4. When a defendant institutes habeas corpus proceedings and has his conviction and sentence held void, he waives the provisions of the statute, Code, 62-3-21, as amended, to be tried within three terms of the finding of the indictment, making it inapplicable in such cases; and by accepting the benefits of having his conviction and sentence set aside and held for naught, he must also accept any disadvantage which may accrue therefrom.

5. In order to properly prove the corpus delicti it is only necessary to prove the occurrence, such as a homicide, and that it was done by a criminal act. Although admissions of an accused can be proper evidence tending to prove the corpus delicti, they are usually admitted into evidence for the purpose of proving the guilt of the accused of the crime charged.

H. G. Williamson, Charles S. Cassis, Huntington, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Thomas B. Yost, Asst. Atty. Gen., Charleston, for defendant in error.

BERRY, Judge.

The defendant Richard Holland and his sister June Holland Lewis were jointly indicted by the grand jury of the Common Pleas Court of Cabell County, West Virginia in 1952 for the murder of Barney Thompson. The same attorney was employed to represent both defendants, and with the approval of the state, their attorney arranged to have the defendant June Holland Lewis plead guilty to the charge of manslaughter covered as a lesser offense in the indictment and she has served the sentence imposed upon her. The defendant Richard Holland pleaded guilty to first degree murder, and was sentenced to life imprisonment in the West Virginia State Penitentiary.

In 1963 he filed a petition for a writ of habeas corpus ad subjiciendum in the United States District Court for the Northern District of West Virginia. On December 16, 1963, the Judge of the United States District Court for the Northern District entered an order setting aside and declaring void the sentence imposed upon the defendant Holland by the Common Pleas Court of Cabell County in 1952 but staying the unconditional release of Holland, in order for the State of West Virginia to afford him a new and constitutionally unexceptable trial, apparently on the ground of conflicting interest on the part of the attorney because he represented both defendants. A supplemental order was entered by the United States District Court on December 23, 1963, directing that Holland be released from the West Virginia Penitentiary subject to the right of the State of West Virginia to afford him promptly a new trial.

On March 16, 1964, Holland was tried again on the same indictment returned by the grand jury of the Common Pleas Court of Cabell County in 1952, after the trial court overruled his pleas relating to former jeopardy and the failure to be brought to trial within three terms from the finding of the indictment, in violation of Code, 62-3-21, as amended. He was found guilty by the jury of first degree murder and sentenced to life imprisonment in the West Virginia State Penitentiary. A petition for a writ of error was timely filed in the Circuit Court of Cabell County, West Virginia, and that Court acting as an Intermediate Appellate Court, refused to grant a writ of error on the ground that the judgment of the Common Pleas Court of Cabell County was plainly right. Upon application to this Court a writ of error and supersedeas was granted on December 18, 1964, and the case was submitted to this Court for decision upon arguments and briefs May 11, 1965.

The assignments of error relied upon by the defendant for reversal by this Court are the overruling of the defendant's special plea of former jeopardy, the overruling of defendant's special plea of discharge for the failure to bring him to trial within three terms from the date the indictment was found and the failure of the State to properly prove the corpus delicti. Other assignments relating to the refusal to give certain instructions and the admitting of certain evidence have no merit and were abandoned in the argument and brief of counsel for the defendant.

The pertinent facts adduced at the trial in the Common Pleas Court of Cabell County in 1964 are comparatively simple, uncomplicated, and in effect, uncontradicted. On July 18, 1952, June Holland Lewis, who is at present known as June Early and is a sister of the defendant, met Barney Thompson at a beer travern in Huntington, West Virginia, and after spending the evening drinking together they went to her mother's home at 821 South High Street in Huntington where they spent the night together in a bedroom.

The next morning they came downstairs and started drinking again. It appears that during this time June Holland Lewis' mother and her brother, as well as a man by the name of Bowen, were present. They ran out of something to drink, and thereafter obtained more and this drinking continued until early afternoon. June Holland Lewis' mother and her brother, the defendant, had been drunk the night before and by the time the crime occurred the mother had 'passed out', the brother was still drinking wine. Sometime before 3 o'clock p. m. June was sitting on the bed between Thompson and Bowen. During this time Thompson was attempting to feel her breast after she had lost her blouse in some manner and she became angry because of these advances being made in front of her mother and brother who, however, apparently at the time, were oblivious of what was going on. She stated that she went into the kitchen and obtained a hammer which she concealed on the bed, and when Thompson continued to make these advances she hit him with the hammer on the head and he fell to the foot of the bed. Then he raised up and hit her on the arm and she struck him again two or three times. While Thompson was trying to get up from the floor she ran out the back door with Bowen who had taken the hammer from her and put it on the steps. She later threw the hammer down an outside toilet in the backyard.

She was cross-examined on a statement which she gave at the police headquarters on the same day in which she was quoted as saying that after Thompson looked up at her 'with his eyes' her mother asked her if she had killed him, and she replied she did not know whether she had or not and that her brother, the defendant, Richard Holland, stated that 'If she didn't I will finish him up.', and then stomped Thompson twice so hard she could hear the head bones being crushed. On re-trial she testified that Richard was too drunk to have done the stomping. Also, the same statement shows that upon being asked why she took Barney Thompson up to her mother's home, she gave the following answer: 'I took him up to my mother's home because he had money and Richard Holland, I needed some money to pay mother's house rent, Richard Holland had told me to be sure and bring someone that had money when I talked to him on 11the Street and 3rd Avenue July the 18th, 1952.' She admitted that it 'looks like' her signature on the statement but denied the assertions attributed to her, saying she didn't remember making such.

When the police arrived at the scene around 3 o'clock in the afternoon, they were met by the defendant who stated several times to different officers that he had killed Thompson and referred to him in obscene terms. The officers all stated that the defendant had been drinking but their opinions differed as to whether it was sufficient to arrest him for drunkenness. All were of the opinion, however, that he was capable of carrying on a coherent conversation.

When the officers entered the house they found Thompson's body lying on the floor which had blood on it, with his shirt thrown open, and all of his pockets turned wrong side out. His body had been mutilated, apparently from being stomped and hit with a sharp instrument.

Medical evidence was introduced during the trial to the effect that Thompson's head was badly crushed by...