Wade v. Skeen, 10699

• Decision Date: 01 March 1955
• Docket Number: No. 10699,10699
• Citation: 140 W.Va. 565,85 S.E.2d 845
• Parties: Lloyd WADE, v. Orel J. SKEEN, Warden, West Virginia Penitentiary.
• Court: West Virginia Supreme Court

Page 845

85 S.E.2d 845

140 W.Va. 565

Lloyd WADE, v. Orel J. SKEEN, Warden, West Virginia Penitentiary.

No. 10699.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1955.

Decided March 1, 1955.

Syllabus by the Court.

1. 'The exclusive jurisdiction granted to juvenile courts by Code, 49-5-3, as amended, dealing with trials of persons under eighteen years of age, charged with having committed criminal offenses, relates only to trials of such persons as to charges of juvenile delinquency, not to trials and punishment for criminal offenses.' Point 3, Syllabus, State ex rel. Hinkle v. Skeen, 138 W.Va. 116 .

2. 'The clause of section 14 of Article III of the Constitution, providing that, in the trial of criminal cases, the accused 'shall have the assistance of counsel,' is permissive and conditional upon the pleasure of the accused, in its application to the conduct of the trial; and, to make a conviction valid, the record need not affirmatively show the prisoner had the assistance of counsel.' Point 2, Syllabus, State v. Yoes, 67 W.Va. 546 .

John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for plaintiff in error.

No appearance for defendant in error.

LOVINS, President.

On January 13, 1944, defendant in error, Lloyd Wade, in the Circuit Court of Taylor County, entered a plea of guilty to an indictment charging that he and one Robert Meadows, on the ___ day of September, 1943, 'did, in the nighttime of the said day, unlawfully, feloniously and burglariously enter, without breaking, a certain garage, the same being an outhouse belonging to Howard R. Lewis, the said garage not then and there being a dwelling house, but then and there being an outhouse adjoining the dwelling house of Howard R. Lewis * * *'. The circuit court, on February 24, 1944, sentenced Wade, and also Meadows, who had also entered a plea of guilty to the indictment, to the state penitentiary 'for a period of not less than one (1) nor more than fifteen (15) years * * *'.

On March 20, 1954, Wade filed in the Circuit Court of Marshall County, the county wherein the state penitentiary is situated, his petition praying for a writ of habeas corpus ad subjiciendum, directed against the warden of the state penitentiary. After the hearing upon the writ granted pursuant to the prayer of the petition, the Circuit Court of Marshall County, on June 8, 1954, ordered the release of Wade from further custody. This Court granted a writ of error to that order.

At the time of the commission of the offense for which Wade was sentenced to the penitentiary, he was an escapee from the West Virginia Industrial School for Boys, having escaped from that institution several times previously and apparently having committed other offenses while an escapee. The trial judge of the circuit court, who sentenced Wade to the penitentiary, was deceased at the time of the taking of testimony in the habeas corpus proceeding. There appears to be no question, however, that the trial judge knew, before accepting the plea of guilty of Wade, that Wade was under eighteen years of age at the time of the commission of the offense. The Circuit Court of Taylor County is the only court in that county exercising juvenile jurisdiction. There is no record of any certification or transfer of the criminal case from the circuit court, as such, to that court as a juvenile court. Wade now contends that the failure to so certify or transfer the case constituted such a violation of Code, 49-5-3, as to effect an ouster of jurisdiction of the circuit court and render void the order sentencing him to the state penitentiary.

We think the question was answered in State ex rel. Hinkle v. Skeen, 138 W.Va. 116, 75 S.E.2d 223, 224. There it was held: '3. The exclusive jurisdiction granted to juvenile courts by Code, 49-5-3, as amended, dealing with trials of persons under eighteen years of age, charged with having committed criminal offenses, relates only to trials of such persons as to charges of juvenile delinquency, not to trials and punishment for criminal offenses.' The applicable statute is quoted and discussed in the opinion in the Hinkle case, and no useful purpose would be served by a further discussion thereof here.

The only other question arising upon the record relates to Wade's contention that he was denied due process of law, in that he was not afforded benefit of counsel by the trial court, a right guaranteed to him by Sections 10 and 14 of Article III of the Constitution of West Virginia, and the Fifth and Fourteenth Amendments to the Federal Constitution. At the hearing upon the petition in the habeas corpus proceeding before the circuit court, Wade and Meadows testified to the effect that they were not represented by counsel in the criminal proceeding; that they were not offered counsel or advised of their right to have counsel; that they at no time refused counsel and that at the time of entry of the guilty pleas they believed that the indictment to which they entered pleas charged them with the crime of grand larceny, not the crime of burglary. Neither of them testified, however, that they requested the assistance of counsel. No other witness was called on behalf of Wade. Francis L. Warder, prosecuting attorney of Taylor County at the time of the prosecution of the criminal charges against Wade and Meadows, and later judge of the circuit court of that county, testifying at the instance of respondent, makes it clear, we think, that the indictment was read to Wade before the acceptance of the plea of guilty, and that it was the invariable practice, as applied to minors, of the trial judge who accepted the plea to advise defendants appearing without counsel of their right to have counsel. The order entered on the 13th of January, 1944, accepting and recording the plea, and the order entered on the 24th day of February, 1944, sentencing Wade, do not specifically mention counsel, or waiver of counsel by Wade. The order accepting the plea of Wade does say that he was 'duly arraigned upon the indictment herein * * *'.

The constitutional right of the defendant in a criminal case to be represented by counsel has been considered by this Court on numerous occasions. The right guaranteed is not a requirement that every defendant in a criminal case be represented by counsel. It is the right of a defendant to call for or demand counsel and to have counsel act pursuant to the call or demand, whether the demand is made before or after the entry of a plea. That defendant may waive the right is made clear by decisions of this Court, as well as other courts, including the Supreme Court of the United States. See State ex rel. Hinkle v. Skeen, supra. It has, of course, been made clear also that such a waiver must be intelligently made, but an intelligent waiver does not imply that a defendant must have precise, or even average, knowledge of every legal or factual question that may arise in the case. He must, however, have sufficient intellect and knowledge to...