State Ex Rel. Tune v. Thompson

151 S.E.2d 732, 151 W. Va. 282

• Court: West Virginia Supreme Court
• Decided: December 20, 1966
• Docket: 12603
• Status: Published

Opinions

Beowning, Judge:

In this original proceeding in this Court, petitioner, William Russell Tune, seeks to prohibit the respondent, the Honorable William J. Thompson, Judge of the Intermediate Court of Kanawha County, from causing petitioner to be tried a second time upon an indictment returned February 15, 1963, charging petitioner with the offense of armed robbery.

The petition alleges, and it is uncontradicted by the answer of respondent, that petitioner was tried upon this indictment in March, 1963, convicted, a motion to set aside the verdict was overruled and petitioner was sentenced to a term of twelve years in the penitentiary. Petitioner made a timely request for a transcript for the purpose of applying for an appeal, however, such transcript was not provided until almost one year later, long after the time within which he could apply for an appeal had expired. Thereafter, in June, 1966, the Circuit Court of Marshall County, in a habeas corpus proceeding instituted by the petitioner, entered an order discharging him from custody on the ground that petitioner’s constitutional rights had been violated, presumably in the failure to timely provide a transcript, but stayed the execution of such order for a period of ten days in order for the state to take such further action as it desired. Petitioner was returned to Kanawha County under authority of a writ of habeas corpus ad prosequendum and is being held for a second trial upon the aforementioned indictment.

Petitioner entered a plea of former jeopardy alleging the facts of the previous trial, conviction and sentence and asserting that such judgment remains in full force and effect although held to be unenforceable in the habeas corpus proceeding, to which plea the state demurred, the demurrer was sustained and the case set for trial.

The validity of the order of the Circuit Court of Marshall County discharging the prisoner from custody upon the ground that the failure to supply him with certain portions of the record of the trial court. he having made timely application therefor, is not before us inasmuch as the state did not appeal as it had a right to do from that order. This Court, in original proceedings in habeas corpus, has discharged many prisoners from custody, in some instances specifically stating that such action was without prejudice to the right of the state to further proceed against the petitioner therein and other cases being silent upon that question. However, where the opinion was silent as to the question of retrial, they have been retried and convicted and this Court has refused to disturb the subsequent convictions.

There is no question about the validity of the provisions of Code, 51-7-7, as amended, providing that an indigent defendant is entitled to “a transcript of the testimony and proceedings of the trial, . . .” in the court in which he was convicted, that being settled in Linger v. Jennings, 143 W. Va. 57, 99 S. E. 2d 740. Furthermore, there can now be no question but what the failure to comply with such request, timely made, violates the guarantees of due process of law provided for in the Fourteenth Amendment of the Constitution of the United States and Article III, Section 10 of the constitution of this state. State ex rel. Kennedy v. Boles, 150 W. Va. 504, 147 S. E. 2d 391; State ex rel. Legg v. Boles, 148 W. Va. 354, 135 S. E. 2d 257; State ex rel. Banach v. Boles, 147 W. Va. 850, 131 S. E. 2d 722. Upon facts indistinguishable from those in the present case, this Court in the Banach case, ordered the prisoner discharged, this being a quotation from that opinion: “Since, under the Griffin case, we must assume for purposes of this decision that errors were committed upon the trial of the case which would have merited a reversal of petitioner’s conviction had he been able to pursue the proper appellate procedure and in the absence of any power in this Court to supply such deficiency at this date, the time for appeal having expired, or to order a new trial, petitioner is entitled to his release upon the writ heretofore issued. . . .” Chapter 53, Article 4, of the Code, as amended, controls habeas corpus procedure in this state and Section 7 thereof provides: “The conrt or judge before whom the petitioner is brought, after hearing the matter both upon the return and any other evidence, shall either discharge or remand him, or admit him to hail, as may be proper....” This section is declarative of the common law principle that a proceeding in habeas corpus, being a collateral and not a direct attack, cannot reverse, vacate, annul, set aside or modify a judgment hut can only vitiate its enforcement to the extent that it is wholly or partially void. State ex rel. Boner v. Boles, 148 W. Va. 802, 137 S. E. 2d 418; State ex rel. Nicholson v. Boles, 148 W. Va. 229, 134 S. E. 2d 576; and cases cited therein. “It acts directly on the effect of the judgment, that is on the imprisonment, hut only collaterally on the judgment itself. ...” Ex parte Mooney, 26 W. Va. 36. The phrase, “or to order a new trial”, as used in the Banach case, which has apparently caused some consternation or “viewing with alarm”, therefore, simply reiterated what had theretofore been said, which was that the appellate period having passed, this Court could give the defendant no relief except in habeas corpus and the only relief he could he given in that proceeding was to discharge him. This Court did not say in that case that the defendant could not he retried. That question was not in issue and therefore no comment thereon was made in the opinion.

A discharge in habeas corpus affects only the imprisonment, that is, the illegal restraint. ‘ ‘ The primary object of habeas corpus is to determine the legality of the restraint under which a person is held and the only issue which it presents is whether the prisoner is restrained of his liberty by due process of law.” State ex rel. Titus v. Hayes, 150 W. Va. 151, 144 S. E. 2d 502. It does not act upon the penalty nor does it operate as an absolute discharge from the legal consequences, or as an acquittal, of a crime. It does not deprive a court of any jurisdiction it may otherwise have. It merely requires resumption of the proceedings at the point they had reached prior to the unlawful action on the part of the court. State ex rel. Powers v. Boles, 149 W. Va. 6, 138 S. E. 2d 159; State ex rel. Boner v. Boles, 148 W. Va. 802, 137 S. E. 2d 418; State ex rel. Nicholson v. Boles, 148 W. Va. 299, 134 S. E. 2d 576. It presents no bar to subsequent proceedings for the reason that the former proceedings having been held invalid, jeopardy did not attach. State v. Holland, 149 W. Va. 731, 143 S. E. 2d 148. Especially is this true where the accused himself has set in motion the proceedings which nullified the judgment. State v. Holland, 149 W. Va. 731, 143 S. E. 2d 148; Foran v. Maxwell (Ohio, 1962), 184 N. E. 2d 398; Northcott v. Hand (Kan., 1960), 352 P. 2d 450; U. S. v. Nash, 264 F. 2d 610; U. S. v. Tateo, 377 U. S. 463, 12 L. Ed. 2d 448, 84 S. Ct. 1587. It is true that in the instant case, distinguishing it from the above cases, the defect rendering petitioner’s confinement illegal occurred subsequent to the judgment and not prior thereto. However, we are of the opinion that the distinction is immaterial. The only reason for the release of petitioner in habeas corpus was because, as stated in Banach, “under the Griffin case, we must assume . . . that errors were committed upon the trial of the case which would have merited a reversal of petitioner’s conviction had he been able to pursue the proper appellate procedure.” It does not require authority for the proposition that when a defendant, upon direct attack, obtains a reversal of a prior, unsatisfied conviction he may be retried in the normal course of events. It, therefore, would be incongruous to compel greater relief for one who proceeds collaterally in habeas corpus than for one whose rights are vindicated on direct review.

For the reasons herein stated the writ of prohibition will be denied.

Writ denied.