Berry, Judge:
This proceeding involves a petition for a writ of habeas corpus filed by James Scott, an inmate of the West Virginia State Penitentiary, invoking the original jurisdiction of this Court, in which he alleges that he was not afforded the assistance of counsel in a previous conviction in Lucas County, Ohio, and was not duly cautioned as required by the recidivist statute of this State before an additional sentence was imposed upon him for the previous conviction. The writ was granted on the basis of these allegations returnable January 12, 1966.
The defendant filed a return in which the allegations contained in the petition were answered in detail with duly certified copies of the court orders showing the proceedings, both in this state for the principal offense and the State of Ohio for the previous conviction, and stating that the petitioner was legally confined in the West Virginia Penitentiary pursuant to the judgments of a court of competent jurisdiction in this State and that a valid commitment for his confinement had been issued under said judgments and that said petitioner was represented by counsel at his previous conviction in the Common Pleas Court of Lucas County, Ohio, as shown by a proper authenticated record of said Court.
On January 12, 1966, the day this proceeding was set for hearing and was submitted, counsel for the petitioner filed a brief in his behalf with an affidavit of the petitioner atr tached thereto in which he stated that he had not been duly cautioned by the Common Pleas Court of Cabell County before the additional sentence was imposed upon him under [455]*455the recidivist statute of this State but he admitted having the assistance of counsel at the previous conviction as shown by the records of the court at which he had been previously convicted. However, it is the contention of the petitioner that he is nevertheless entitled to relief in this proceeding because the court order of the Common Pleas Court of Ca-bell County where he was convicted of the principal offense and sentenced to an additional five years under the recidivist statute is silent with regard to his being duly cautioned by said Court before the sentence was imposed. A certified copy of the court order filed with the defendant’s return is silent with regard to the duly cautioning of the petitioner. The cause was submitted to this Court for decision by the parties upon arguments and briefs.
On January 3, 1958, the petitioner, at which time he was represented by counsel in the Common Pleas Court of Cabell County, West Virginia, pleaded guilty to an indictment charging him with breaking and entering, after which a written information was filed by the prosecuting attorney alleging that the petitioner had been previously convicted of a felony in the Common Pleas Court of Lucas County, Ohio. The petitioner was thereupon sentenced to confinement in the West Virginia Penitentiary of from one to ten years for the principal offense and an additional sentence of five years for the previous felony conviction in the Common Pleas Court of Lucas County, Ohio. Although the petitioner has not served the maximum sentence provided for the principal offense, it is his contention in this proceeding that the additional sentence of five years imposed upon him should be held void by this Court because it is not affirmatively shown by the order of the Common Pleas Court of Cabell County that he was duly cautioned. Although there is a presumption of regularity in court proceedings and that the court performed its duty in every respect as required by law, the petitioner insists that this presumption has been overcome by the affidavit attached to the brief filed in his behalf on the day of the hearing. No answer or traverse to the return was filed by the petitioner denying the statements [456]*456in the return. See 39 C.J.S., Habeas Corpus, §99, and Hurley v. Hurley, 71 W. Va. 269, 76 S. E. 438.
The question involved in this proceeding has been previously answered by this 'Court on several occasions. A statement that an accused is not duly cautioned is merely a conclusion of law and is not proper pleading nor is it proof if contained in an affidavit. State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S. E. 2d 608, (decided March 9, 1965); Smith v. Boles, 150 W. Va. 1, (decided July 27, 1965). It is true that under the statute of this State dealing with habeas corpus proceedings a prima facie case, in order for this Court to issue a writ, may be made by an affidavit or other evidence which may indicate probable cause to believe that a person is detained without lawful authority. Code, 53-4-1. However, this does not in any way warrant the release of a petitioner confined in the penitentiary. Such petitioner has the burden of proving by a preponderance of the evidence the allegations alleged in his petition or affidavit which would warrant his release. 39 C.J.S., Habeas Corpus, §§99, 100. Walker v. Johnston, 312 U. S. 275. Section 2 of Rule IX of the Rules of this Court clearly states that affidavits will not be considered except in ex parte hearings and that in effect it is necessary to take depositions in order to have proper proof although such depositions are labeled or called affidavits. This rule reads as follows:
“Other than on ex parte hearings, affidavits will not be considered by the court unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the same, with the right of cross-examination.”
Similarly, Section 6, Article 4, Chapter 53, Code of West Virginia, relating solely to the use of affidavits in habeas corpus cases, provides that they may be read as evidence if taken at the direction of the court on reasonable notice to the other party.
It has been repeatedly held that there is a presumption of regularity of court proceedings in courts of competent jurisdiction which remains until the contrary appears and that the burden of proving any irregularity in such court proceed ■ [457]*457ings rests upon the person who alleges such irregularity to show it affirmatively. In a collateral proceeding such as this proceeding which is an attack on a judgment of a court of competent jurisdiction in another proceeding the burden does not shift to the defendant upon the filing of a petition and affidavit to prove that the judgment is proper in all respects and that the court performed all of its duties required by law. 39 C.J.S., Habeas Corpus, §100. It will be presumed, where the record is silent, that a court of competent jurisdiction performed its duty in all respects as required by law. There is, however, an exception with regard to this presumption relating to the right to the assistance of counsel, which is a fundamental constitutional right provided in both the State and Federal Constitutions and will not be presumed satisfied. State ex rel. Massey v. Boles, Warden, 149 W. Va. 292, 140 S. E. 2d 608; State ex rel. Arbraugh v. Boles, 149 W. Va. 193, 139 S. E. 2d 370; State ex rel. Stumbo v. Boles, 149 W. Va. 174, 139 S. E. 2d 259; State ex rel. Browning v. Boles, 149 W. Va. 181, 139 S. E. 2d 263.
It should be pointed out that this Court is an appellate court and does not conduct hearings with oral testimony before the court as do trial courts.
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Berry, Judge:
This proceeding involves a petition for a writ of habeas corpus filed by James Scott, an inmate of the West Virginia State Penitentiary, invoking the original jurisdiction of this Court, in which he alleges that he was not afforded the assistance of counsel in a previous conviction in Lucas County, Ohio, and was not duly cautioned as required by the recidivist statute of this State before an additional sentence was imposed upon him for the previous conviction. The writ was granted on the basis of these allegations returnable January 12, 1966.
The defendant filed a return in which the allegations contained in the petition were answered in detail with duly certified copies of the court orders showing the proceedings, both in this state for the principal offense and the State of Ohio for the previous conviction, and stating that the petitioner was legally confined in the West Virginia Penitentiary pursuant to the judgments of a court of competent jurisdiction in this State and that a valid commitment for his confinement had been issued under said judgments and that said petitioner was represented by counsel at his previous conviction in the Common Pleas Court of Lucas County, Ohio, as shown by a proper authenticated record of said Court.
On January 12, 1966, the day this proceeding was set for hearing and was submitted, counsel for the petitioner filed a brief in his behalf with an affidavit of the petitioner atr tached thereto in which he stated that he had not been duly cautioned by the Common Pleas Court of Cabell County before the additional sentence was imposed upon him under [455]*455the recidivist statute of this State but he admitted having the assistance of counsel at the previous conviction as shown by the records of the court at which he had been previously convicted. However, it is the contention of the petitioner that he is nevertheless entitled to relief in this proceeding because the court order of the Common Pleas Court of Ca-bell County where he was convicted of the principal offense and sentenced to an additional five years under the recidivist statute is silent with regard to his being duly cautioned by said Court before the sentence was imposed. A certified copy of the court order filed with the defendant’s return is silent with regard to the duly cautioning of the petitioner. The cause was submitted to this Court for decision by the parties upon arguments and briefs.
On January 3, 1958, the petitioner, at which time he was represented by counsel in the Common Pleas Court of Cabell County, West Virginia, pleaded guilty to an indictment charging him with breaking and entering, after which a written information was filed by the prosecuting attorney alleging that the petitioner had been previously convicted of a felony in the Common Pleas Court of Lucas County, Ohio. The petitioner was thereupon sentenced to confinement in the West Virginia Penitentiary of from one to ten years for the principal offense and an additional sentence of five years for the previous felony conviction in the Common Pleas Court of Lucas County, Ohio. Although the petitioner has not served the maximum sentence provided for the principal offense, it is his contention in this proceeding that the additional sentence of five years imposed upon him should be held void by this Court because it is not affirmatively shown by the order of the Common Pleas Court of Cabell County that he was duly cautioned. Although there is a presumption of regularity in court proceedings and that the court performed its duty in every respect as required by law, the petitioner insists that this presumption has been overcome by the affidavit attached to the brief filed in his behalf on the day of the hearing. No answer or traverse to the return was filed by the petitioner denying the statements [456]*456in the return. See 39 C.J.S., Habeas Corpus, §99, and Hurley v. Hurley, 71 W. Va. 269, 76 S. E. 438.
The question involved in this proceeding has been previously answered by this 'Court on several occasions. A statement that an accused is not duly cautioned is merely a conclusion of law and is not proper pleading nor is it proof if contained in an affidavit. State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S. E. 2d 608, (decided March 9, 1965); Smith v. Boles, 150 W. Va. 1, (decided July 27, 1965). It is true that under the statute of this State dealing with habeas corpus proceedings a prima facie case, in order for this Court to issue a writ, may be made by an affidavit or other evidence which may indicate probable cause to believe that a person is detained without lawful authority. Code, 53-4-1. However, this does not in any way warrant the release of a petitioner confined in the penitentiary. Such petitioner has the burden of proving by a preponderance of the evidence the allegations alleged in his petition or affidavit which would warrant his release. 39 C.J.S., Habeas Corpus, §§99, 100. Walker v. Johnston, 312 U. S. 275. Section 2 of Rule IX of the Rules of this Court clearly states that affidavits will not be considered except in ex parte hearings and that in effect it is necessary to take depositions in order to have proper proof although such depositions are labeled or called affidavits. This rule reads as follows:
“Other than on ex parte hearings, affidavits will not be considered by the court unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the same, with the right of cross-examination.”
Similarly, Section 6, Article 4, Chapter 53, Code of West Virginia, relating solely to the use of affidavits in habeas corpus cases, provides that they may be read as evidence if taken at the direction of the court on reasonable notice to the other party.
It has been repeatedly held that there is a presumption of regularity of court proceedings in courts of competent jurisdiction which remains until the contrary appears and that the burden of proving any irregularity in such court proceed ■ [457]*457ings rests upon the person who alleges such irregularity to show it affirmatively. In a collateral proceeding such as this proceeding which is an attack on a judgment of a court of competent jurisdiction in another proceeding the burden does not shift to the defendant upon the filing of a petition and affidavit to prove that the judgment is proper in all respects and that the court performed all of its duties required by law. 39 C.J.S., Habeas Corpus, §100. It will be presumed, where the record is silent, that a court of competent jurisdiction performed its duty in all respects as required by law. There is, however, an exception with regard to this presumption relating to the right to the assistance of counsel, which is a fundamental constitutional right provided in both the State and Federal Constitutions and will not be presumed satisfied. State ex rel. Massey v. Boles, Warden, 149 W. Va. 292, 140 S. E. 2d 608; State ex rel. Arbraugh v. Boles, 149 W. Va. 193, 139 S. E. 2d 370; State ex rel. Stumbo v. Boles, 149 W. Va. 174, 139 S. E. 2d 259; State ex rel. Browning v. Boles, 149 W. Va. 181, 139 S. E. 2d 263.
It should be pointed out that this Court is an appellate court and does not conduct hearings with oral testimony before the court as do trial courts. The constitution of this state does give this Court original jurisdiction in habeas corpus proceedings, in addition to its appellate jurisdiction in such cases. Article VIII, Section 3, Constitution of West Virginia. However, the Constitution also gives the circuit courts original jurisdiction in such cases. Article VIII. Section 12. The circuit courts are trial courts and full hearings can be held with testimony of witnesses given in person before the judges thereof.
The inmates of the penal institutions of this state can institute habeas corpus proceeding in the circuit court or any other trial court created and given such jurisdiction by the legislature in the counties wherein such institutions in which they are detained are located if they so desire and can have a full hearing in such proceedings before such courts. Code, 53-4-1 and 53-4-2.
Although this court can and does appoint attorneys to represent indigent petitioners in habeas corpus proceedings [458]*458that come before it, the court cannot represent or act as attorney for such petitioners or provide methods for releasing them from confinement not sanctioned by law. However, in the case at bar, even if the proceeding had been instituted in a trial court and no proof other than the allegation contained in the petition and affidavit was offered, relief could not have been granted to the petitioner.
The common law procedure governing habeas corpus proceedings does not allow it to be used as a writ of error or as a post-conviction procedure in a collateral attack on a court proceeding valid on its face notwithstanding the procedure used in the federal courts. 1 Cooley’s Constitutional Limitations, (8th Ed.) 723; Slater v. Melton, 119 W. Va. 259, 262, 192 S. E. 185; Hawk v. Olson, 145 Neb. 306, 16 N. W. 2d 181; Hawk v. Olson, 326 U. S. 271, 66 S. Ct. 116, 90 L. Ed. 67; Hawk v. Olson, 146 Neb. 875, 22 N. W. 2d 136; Case v. State, 177 Neb. 404, 129 N. W. 2d 107. But, see Case v. State of Nebraska, _ U. S. _, 14 L. Ed. 2d 422, 85A S. Ct. 1486, (decided May 24, 1965), for a solution to the situation. It should be noted, however, that inasmuch as the maximum sentence for the principal offense has not been fully served by the petitioner and he therefore cannot be released from confinement in any event, the federal courts would not issue the writ in the first instance. 39 C. J. S., Habeas Corpus, Section 82 (b); Ex Parte Zimmerman, 132 F. 2d 442; Estabrook v. King, 119 F. 2d 607; Albori v. United States, 67 F. 2d 4; Walker v. Johnston, 312 U. S. 275.
The identical question presented in this case was involved in the case of Smith v. Boles, supra, which was decided by this Court July 27, 1965, and it is adequately and fully answered in the syllabus, wherein it is stated:
“There is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law, with the exception of the fundamental constitu[459]*459tional right of assistance of counsel which is specifically provided for in both the State and Federal Constitutions.”
The presumption of regularity of court proceedings applies without question to courts of record of general jurisdiction or courts of record of limited jurisdiction with presumption of jurisdiction granted by the legislature in the statute creating such courts. This matter was usually provided for by the legislature in this state when such courts were created. Rutter v. Sullivan, 25 W. Va. 427; Slater v. Melton, 119 W. Va. 259, 192 S. E. 185. See Chapter twenty-eight, Acts of the Legislature, Regular Session, 1893 at page 90, for the original granting of presumption of jurisdiction for court involved herein. In the case of Smith v. Boles, supra, the court of record was the circuit court, a court of general jurisdiction. In the case at bar the court of record is the Common Pleas Court of Cabell County, which was granted such authority, i.e., that its jurisdiction would be presumed “unless the contrary plainly appears upon the record”, when it was originally created by the legislature in 1893 as a criminal court and the amendments thereto changing the name and giving it additional jurisdiction are not inconsistent or in conflict with such matter.
It is true that in courts of limited jurisdiction unless they are granted a presumption of jurisdiction by the legislature it is ordinarily necessary that the jurisdictional facts appear of record in order to create the presumption that such court had jurisdiction. Rutter v. Sullivan, supra; Slater v. Melton, supra. However, it is usually held even in courts of limited and inferior jurisdiction that the presumption of the regularity of judicial proceedings attaches when a party, imprisoned under an order or process of court, seeks relief therefrom on habeas corpus. 39 C. J. S., Habeas Corpus, Section 100 a. (2), page 670.
Although this matter discussed above was not raised or questioned in this proceeding, nor was it raised or questioned in the case of Smith v. Boles, supra, the dissenting opinion in that case raised the question, and the purpose of [460]*460the discussion contained herein in connection therewith is to clarify the matter.
For the reasons set out herein the relief prayed for by the petitioner is denied and he is remanded to the custody of the defendant.
Prisoner remanded.