Thornhill v. Smyth, Record No. 3195.

• Decision Date: 13 January 1947
• Docket Number: Record No. 3195.
• Citation: 185 Va. 986
• Court: Virginia Supreme Court
• Parties: JOHN THORNHILL v. W. FRANK SMYTH, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.

Page 986

185 Va. 986

JOHN THORNHILL v. W. FRANK SMYTH, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.

Record No. 3195.

Supreme Court of Virginia, Richmond.

January 13, 1947.

Present, Holt, C.J., and Hudgings, Gregory, Eggleston, Spratley and Buchanan, JJ.

1. JURY — Waiver of Jury Trial — Advice of Counsel — Collateral Attak. — The 1940 amendment to section 4776 of the Code (Michie's Code of 1942), which requires advice of counsel prior to the waiver of a jury, creates only a statutory right involving trial procedure, a violation of which would be subject only to direct attack and not by a collateral attack in a habeas corpus proceeding.

2. HABEAS CORPUS — Office of Writ — Not Substitute for Writ of Error or Appeal. — A writ of habeas corpus will not be permitted to perform the function of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in a court having jurisdiction over the person and the subject matter.

3. JURY — Waiver of Jury Trial — Advice of Counsel — Necessity for Showing in Record — Case at Bar. — The instant case was to review a judgment of the lower court dismissing a petition for a writ of habeas corpus. The petitioner contended that it was a jurisdictional prerequisite to the validity of a conviction of a felony that the record of the trial court affirmatively show that an accused, who has pleaded not guilty and waived a trial by jury, did so "after being advised by counsel" and that the exercise of the right to be advised by counsel was a prerequisite to the jurisdiction of the trial court over the proceedings.

Held: That there was no merit in the contention of the petitioner. The right of the petitioner to the advice of counsel was conferred only by statute and was not thereby made a jurisdictional prerequisite. The exercise of the right, therefore, was not required to be affirmatively shown on the record.

Error to a judgment of the Circuit Court of the city of Richmond. Hon. Julien Gunn, judge presiding.

The opinion states the case.

W. A. Hall, Jr., for the plaintiff in error.

Abram P. Staples, Attorney General, and M. Ray Doubles, Assistant Attorney General, for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

This writ of error was awarded to John Thornhill to review a judgment of the lower court dismissing his petition for a writ of habeas corpus, and ordering his remand to the custody of W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary.

The petitioner, John Thornhill, was indicted for rape at the October, 1944, term of the Circuit Court of Henry county. At his trial on October 12, 1944, he was represented by counsel of his own choosing, Irvin W. Cubine. Mr. Cubine, after several full and free consultations with his client, advised him to waive a trial by jury. Thornhill fully acquiesced in and accepted that advice, and thereupon, in his own person, pleaded "not guilty" and waived a trial by jury.

Thornhill was found guilty. The pertinent part of the final judgment order in the trial reads as follows:

"This day again came the attorney for the Commonwealth and the defendant appeared in court in his own proper person was thereof arraigned plead not guilty to the indictment, and a trial by jury being waived by the defendant in person, and with the consent of the defendant tendered in person the attorney for the Commonwealth and Court, the Court proceeding to hear and determine this cause without the intervention of a jury, after hearing the evidence and argument of counsel doth find the prisoner guilty of Attempted Rape and fixed his punishment at Twenty years in the Penitentiary, * * *."

The petitioner contends that, under Virginia Code, 1942 (Michie), section 4776, the exercise of his right to be advised by counsel, prior to his waiver of a trial by jury, was a prerequisite to the jurisdiction of the trial court over the proceedings. The validity of his commitment is attacked on the ground that the judgment order does not affirmatively show that the petitioner consented to a trial without a jury, "after being advised by counsel," and that, consequently, the record does not show the jurisdiction of the court.

The single question for our determination is whether it is a jurisdictional prerequisite to the validity of a conviction of a felony that the record of the trial court affirmatively show that an accused, who has pleaded not guilty and waived a trial by jury, did so "after being advised by counsel."

Paragraph 3 of Article I, section 8, of the Constitution of Virginia, reads as follows:

"In criminal cases, the accused may plead guilty; and, if the accused plead not guilty, with his consent and the concurrence of the Commonwealth's attorney and of the court entered of record, he may be tried by a smaller number of jurors, or waive a jury. In case of such waiver, or plea of guilty, the court shall try the case."

Virginia Code, 1942 (Michie), section 4776, reads as follows:

"No person shall be convicted of felony, unless by his confession of guilt in court, or by his plea, or by the verdict of a jury, accepted and recorded by the court. One accused of a felony may plead not guilty and, with his consent after being advised by counsel,...