Tann v. Commonwealth
| Decision Date | 21 November 1949 |
| Citation | 56 S.E.2d 47,190 Va. 154 |
| Court | Virginia Supreme Court |
| Parties | TANN. v. COMMONWEALTH. |
Keystone Tann, alias Henry Harris, was convicted in the Circuit Court of the City of Richmond, Harold F. Snead, J., of escaping from the state penitentiary and he appealed.
The Supreme Court of Appeals, Spratley, J., held that since at the time of his escape defendant was in lawful custody under un-assailed sentences of imprisonment, his escape from custody was unlawful and affirmed the judgment.
W. A. Hall, Jr., Richmond, for plaintiff in error.
J. Lindsay Almond, Jr., Atty. Gen., Frederick T. Gray, Sp. Asst. Atty. Gen., for Commonwealth.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
Keystone Tann, alias Henry Harris, was, on the 13th day of March, 1946, indicted in the Circuit Court of the city of Richmond, Virginia, on a charge of escaping from the State Penitentiary while being then and there confined under a lawful conviction and sentence for a felony. Virginia Code 1942, Michie, section 5049. Trial upon this indictment was held on February 7, 1949, shortly after the recapture of Tann.
Upon his trial, the defendant, by counsel, first moved the court to quash the indictment against him on the ground that any judgment of conviction for which he was held in custody at the time of his escape was void. He introduced in evidence certified copies of five former indictments and judgments of conviction against him. The court overruled the motion and Tann then, in his own proper person, pleaded not guilty. With his further consent given in person, after being advised by his counsel, and with the consent of the Attorney for the Commonwealth and of the court, entered of record, he was tried by the court without the intervention of a jury. The court, having heard the evidence and argument of counsel, found him guilty of escape as charged in the indictment, and fixed his punishment at one year in the State Penitentiary. Virginia Code 1942, Michie, section 5051. The term of one year was ordered to run concurrently with the term or terms for which the defendant had been formerly sentenced. From the judgment and sentence entered in accordance with the finding of the court, the defendant has perfected this appeal.
The record discloses that Tann, prior to his escape from the penitentiary on August 2, 1939, had been indicted, tried, and found guilty, in the Circuit Court of Princess Anne county, of five separate felonies, and had been sentenced to imprisonment in the State Penitentiary as follows:
On February 25, 1936, on conviction upon each of two indictments for housebreaking with intent to commit larceny, Virginia Code 1942, Michie, section 4439, and sentenced to terms of five and two years, the two-year term to commence at the termination of the five-year term; on March 21, 1939, on conviction upon another indictment for housebreaking, etc., and sentenced to a term of five years; and also on the last mentioned date, on conviction upon each of two indictments for the grand larcenyof hogs, Virginia Code 1942, Michie, section 4440, and sentenced to terms of two years and one year, the one year term to commence at the termination of the two-year term.
Each of the above cases was, with the consent of the Attorney for the Commonwealth and the court entered of record, heard and determined by the court without the intervention of a jury. Each conviction was upon the plea of guilty tendered in person by the defendant. None of the judgment orders shows whether or not he was represented by counsel.
The defendant claimed in the lower court, and claims here, that each judgment of conviction in 1936 and 1939 is void for defects on the face of the record, and also for lack of due process of law, in that he did not have the assistance of counsel upon his trials. He contends, therefore, that he committed no crime in escaping from a custody arising from sentences imposed in accordance with such judgments.
On the other hand, it is the position of the Commonwealth that the escape of the defendant from confinement in the penitentiary, pursuant to his conviction and sentence by a court of competent jurisdiction, was unlawful, whether or not his convictions could have been, or can be, declared void in habeas corpus proceedings. The Commonwealth denies that any of the former convictions of Tann is void, and contends, without dispute, that if any one of them is valid the conviction for escape must be sustained, since Tann had not served a single sentence at the time of his escape.
If the position of the Commonwealth is correct, the question of the validity of his convictions in Princess Anne county is immaterial. For this reason, we will first consider the contention of the Commonwealth.
The evidence in this case consists of certified copies of the five indictments and judgments from the Circuit Court of Princess Anne county, the evidence of the defendant, and the evidence of the Commonwealth.
Tann testified that he was an ignorant boy, seventeen years old in 1936; that in his trials on the above indictments, he did not know he had the right to assistance of counsel and was without funds to obtain the same; that the judge of the trial court did not inform him as to his right to counsel or give him any advice in respect to the consequences of his plea of guilty, or explain the range of penalties for the felonies charged in the indictments, and that in each of his former convictions he was guilty only of lesser offenses than those of which he was convicted.
The evidence of the Commonwealth showed that Tann...
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...involve dangerous consequences. Prison guards are authorized by law to shoot a prisoner who attempts to escape.' Tann v. Commonwealth, 190 Va. 154, 56 S.E.2d 47, 49. 'Remedies are available for procuring through legal process the release of those who are unlawfully held in custody.' Mullica......
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