Andrews v. Aderhold
| Decision Date | 12 June 1946 |
| Docket Number | 15447. |
| Citation | 39 S.E.2d 61,201 Ga. 132 |
| Parties | ANDREWS v. ADERHOLD, Warden. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The writ of habeas corpus will not lie after conviction, for the purpose of obtaining a release of the prisoner upon the ground of lack of counsel on his trial, when it appears that such question had been raised before the trial court in his motion for a new trial following the conviction, that the trial court upon conflicting evidence had overruled such contention, that such ruling had been affirmed by this court and that the Supreme Court of the United States had refused to grant a writ of certiorari to review the judgment of this court.
2. In this State the common-law rule that the doctrine of res judicata does not extend to the trial of habeas corpus proceedings is not of force, and such proceedings are subject to the provisions of the Code, § 110-501.
(a) Accordingly, where, in response to a petition for habeas corpus, brought by a wife to obtain the release of her husband, the respondent filed a plea of res judicata, and on the trial it appeared without dispute that upon the trial of a previous habeas corpus, brought in the United States District Court by the husband and based upon substantially the same grounds, a judgment had been rendered against the petitioner, that the judgment had been affirmed by the Circuit Court of Appeals, and that the United States Supreme Court had denied a writ of certiorari to review the latter judgment, the trial judge did not err in sustaining such plea of res judicata and in remanding the petitioner's husband to the custody of the respondent.
3. The above conclusion would likewise result as applied to the facts of this case, even under the rule adopted by the United States Supreme Court, namely, that although res judicata does not apply strictly in a habeas corpus case, nevertheless the trial judge may consider, and even give controlling weight to, a prior refusal to discharge on a like application, after considering the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it.
4. An applicant for the writ of habeas corpus may not without excuse withhold allegations from his petition and thereafter use them on a second attempt if the first should fail. Even if it should be assumed that there were material allegations of fact in the instant petition additional to those in the previous applications, no sufficient reason appears for withholding them from such previous applications.
5. Under the principles of law above stated, the judgment of the trial court denying to the petitioner the discharge of her husband is affirmed.
Daisy L. Churchwell, of Macon, for plaintiff in error.
Eugene Cook, Atty. Gen., Victor Davison, Asst. Atty. Gen., Chas. H Garrett, Sol. Gen., of Macon, and R. N. Odum, Deputy Asst Atty. Gen., for defendant in error.
On October 3, 1945, Louise Andrews, the plaintiff in error, filed in the city court of Reidsvlle her petition for a writ of habeas corpus, naming as the respondent A. C. Aderhold, warden of Georgia State prison. She alleged that he was illegally holding her husband, Sylvester Andrews, a colored man, who was under sentence of electrocution by virtue of his conviction in Bibb superior court under an indictment charging him with rape upon one Annie Lee Flanders, a colored woman, now deceased. It was alleged in effect that his conviction and trial were in violation of his constitutional rights to due process of law and equal protection of the laws, in that he was deprived of his constitutional guarantee of benefit of counsel upon his trial. Errors alleged to have been committed upon his trial were also set forth. The grounds of complaint will not be stated here in detail, as they are for the most part, substantially set forth in the opinion rendered by this court in affirming the conviction. See Andrews v. State, 196 Ga. 84, 26 S.E.2d 263. The writ was issued and the petition was subsequently amended. To this petition a response was filed allegedly 'in the form of a plea of res judicata,' which, by agreement of counsel, was first tried. The respondent in this plea contended that in a number of judgments and decisions rendered subsequently to the conviction, 'all material questions affecting the jurisdiction of Bibb superior court in the original trial had been passed upon,' such judgments having been rendered in connection with the following proceedings.
The plea alleged: That the conviction of Sylvester Andrews had been affirmed by the Supreme Court of Georgia (see 196 Ga. 84, 26 S.E.2d 263), and that his petition for certiorari to review such judgment had been denied by the United States Supreme Court on October 25, 1943. See Andrews v. State of Georgia, 320 U.S. 780, 64 S.Ct. 87, 88 L.Ed. 468. That the judge of the city court of Macon, sitting in habeas corpus, on January 4, 1944, had refused relief, denied a supersedeas, and that on January 15, 1944, a bill of exceptions had been dismissed by Sylvester Andrews and his present counsel. That Honorable Bascom S. Deaver, judge of the United States District Court for the middle district of Georgia, after a hearing, had denied a discharge in habeas corpus proceedings filed in that court by Sylvester Andrews on February 11, 1944; that this decision had been appealed to the Circuit Court of Appeals for the Fifth Judicial Circuit where such judgment had been affirmed (see Andrews v. Robertson, jailer, 145 F.2d 101); and that on April 9, 1945, the Supreme Court of the United States had refused to review the latter judgment. See Andrews v. Robertson, jailer, 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427. That the Georgia Supreme Court had refused three described applications of Sylvester Andrews for writs of mandamus to compel Honorable Mallory C. Atkinson, judge, of the superior court of Bibb County, to certify bills of exceptions complaining of matters set up in the present petition for habeas corpus.
Upon the hearing the respondent introduced in support of his plea a large mass of documentary evidence, and specific reference to certain portions thereof will subsequently be made. This plea was sustained, and the petition for habeas corpus was dismissed by Judge Cowart on January 15, 1946, and a bill of exceptions was sued out to this court. The substantial question for determination is whether under the undisputed evidence, the judgment refusing to discharge the prisoner was proper.
1. The principal insistence of the plaintiff in error is that her husband, Sylvester Andrews, in his trial in Bibb superior court was not afforded his constitutional right to the benefit of counsel guaranteed by the Georgia constitution, Article 1, § 1, par. 5, Code § 2-105, and by the due process and equal protection clauses of the Federal Constitution, Amendment 14. See Ga.Code, § 1-815. The petition attacks the competency of the attorney employed by the defendant's family to represent him upon his trial. From records in evidence it appears that the same question had been raised before the trial court by amendments to his motion for a new trial following his conviction; that conflicting evidence had been heard by the trial court upon that issue; that the decision of the trial court overruling such ground had been subsequently affirmed by this court (see 196 Ga. 84, 26 S.E.2d 263); and that a petition for certiorari to review such judgment had been denied by the United States Supreme Court. See 320 U.S. 780, 64 S.Ct. 87, 88 L.Ed. 468. It further appears that no question has ever been raised as to the competency of another and different attorney who represented Sylvester Andrews in connection with said motion for new trial in the lower court and on appeal before this court, and who later sought a review by the United States Supreme Court. In these circumstances the writ of habeas corpus will not lie. Walker v. Clarke, 150 Ga. 98, 102 S.E. 822. The rule is well established that the writ will not be used as a substitute for appeal, writ of error, or other remedial procedure of which the defendant had the opportunity to avail himself upon his trial. Kinman v. Clark, 185 Ga. 328, 330, 195 S.E. 166, and cases cited; Aldredge v. Williams, 188 Ga. 607(1), 4 S.E.2d 469; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; 39 C.J.S., Habeas Corpus, §§ 7, 8, 16, 21; 25 Am.Jur. §§ 14, 19, 21. See also Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 239, 87 L.Ed. 268, 143 A.L.R. 435, which states that, 'this rule must be strictly observed if orderly appellate procedure is to be maintained.' It is true that the error complained of is that the defendant Andrews did not have the benefit of counsel upon his trial, and had not waived the same, and if we assume that to have been true, he would, of course, have been denied a constitutional right. However, the express question as to whether he did have the benefit of counsel was raised before the trial judge whose ruling was affirmed by this court, and the United States Supreme Court declined to interfere. The evidence before the judge amply supported his finding, and this court affirmed the judgment. See also, Williams v. State, 192 Ga. 247, 15 S.E.2d 219, where a similar issue was raised upon an extraordinary motion for new trial.
As to the other alleged errors claimed in the petition for habeas corpus to have been committed on the trial of Andrews in Bibb superior court, each of them was either raised and determined, or could have been raised and determined in that court, and consequently, under the cases above cited would not constitute sufficient grounds for discharge on a habeas corpus petition.
2. We consider that we would be justified in resting...
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