Balkcom v. Townsend

• Decision Date: 18 February 1964
• Docket Number: No. 22258,22258
• Parties: R. P. BALKCOM, Jr. v. Troy, W. TOWNSEND.
• Court: Georgia Supreme Court

Page 399

135 S.E.2d 399

219 Ga. 708

R. P. BALKCOM, Jr. v. Troy, W. TOWNSEND.

No. 22258.

Supreme Court of Georgia.

Feb. 18, 1964.

Rehearing Denied March 5, 1964.

Syllabus by the Court

The trial judge erred in overruling the plea of res judicata.

Eugene Cook, Atty. Gen., Howard P. Wallace, Benjamin L. Johnson, Albert Sidney Johnson, Asst. Attys. Gen., Atlanta, B. Daniel Dubberly, Jr., Glennville, for plaintiff in error.

Troy W. Townsend, pro se, Roberts & Thornton, E. Mullins Whisnant, Columbus, for defendant in error.

HEAD, Presiding Justice.

Troy W. Townsend filed his petition for habeas corpus against R. P. Balkcom, Warden. The petitioner alleged that he had been denied due process of law under the State and Federal Constitutions in that he had been denied counsel at the time he was sentenced in the Superior Court of Muscogee County in June, 1960. At the conclusion of the hearing the trial judge ordered that the respondent deliver the petitoner to the authorities of Muscogee County 'so that he may be afforded legal counsel in the charges' against him. The respondent warden excepts to this judgment.

The three indictments and sentences were introduced in evidence. In case No. 20895 the petitioner was sentenced for a period of five years for 'theft of an automobile.' In case No. 20896 the court imposed a sentence for a period of twenty years for burglary. In case No. 20897 the petitioner was charged in two counts with robbery by the use of an offensive weapon, and was sentenced to confinement in the penitentiary for the remainder of his life on each count. The bills of indictment disclose that the petitioner did not sign any waiver or plea of guilty and no waiver or plea was signed for him by any person as counsel. Each of the three indictments has an entry by the solicitor general as follows: 'The defendant Troy Wayne Townsend waives copy of bill of indictment, and list of witnesses sworn before the grand jury, and arraignment, and pleads guilty.'

The petitioner testified in his own behalf: 'My name is Troy W. Townsend and I was sentenced in Muscogee County, in June, 1960 for robbery by use of an offensive weapon on two counts and given a life sentence on each count. I was also given a twenty to twenty year sentence for burglary and a five to five year sentence for auto theft. I told them that I wanted a lawyer and they said I didn't need one. They would not give me a lawyer even though I wanted one. No one advised me of my right to have a lawyer. I filed an application for habeas corpus in this court before, raising the same grounds as in this petition, but at that time I didn't have the goods. This time I have copies of my charges and they show that I did not have a lawyer. I have also filed a petition for habeas corpus in the United States District Court before.'

It is the contention of the respondent that the rule of res judicata applies to habeas corpus proceedings under the provisions of Code § 110-501. Counsel for the respondent cite and rely upon Perry v. McLendon, 62 Ga. 598; Day v. Smith, 172 Ga. 467, 157 S.E. 639; Andrews v. Aderhold, 201 Ga. 132, 39 S.E.2d 61; Wells v. Keith, 213 Ga. 858, 102 S.E.2d 533; Mitchem v. Balkcom, 219 Ga. 47, 131 S.E.2d 562; and similar cases. This court has consistently held in a number of full bench decisions that res judicata does apply in habeas corpus cases under the Constitution and laws of this State.

The petitioner asserts that the United States Supreme Court has ruled that: '* * * it is nevertheless the general rule that res judicata is no defense where between the time of the first judgment and the second the has been an intervening decision or a change in the law creating an altered situation.' State Farm Mutual Automobile Ins. Co. v. Duel, 324 U.S. 154, 162, 65 S.Ct. 573, 577, 89 L.Ed. 812. The petitioner insists that this rule is applicable in his case in that at the time his first application for habeas corpus was denied his case was controlled by...