Balkcom v. Vickers
| Citation | 220 Ga. 345,138 S.E.2d 868 |
| Decision Date | 30 September 1964 |
| Docket Number | No. 22578,22578 |
| Parties | R. P. BALKCOM, Jr. v. Walter K. VICKERS. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
1. There was evidence authorizing the judgment in favor of the petitioner's contention as to denial of counsel.
2. The provision of the judgment seeking to direct the petitioner's sentencing in the event of reconviction is void.
Eugene Cook, Atty. Gen., Albert Sidney Johnson, Peyton S. Hawes, Jr., Asst. Attys. Gen., Atlanta, B. Daniel Dubberly, Jr., Deputy Asst. Atty. Gen., Glennville, for plaintiff in error.
No appearance for defendant in error.
For review here is a habeas corpus judgment sustaining the petitioner's contention that he was denied the right of counsel upon his sentencing. The petitioner, Walter K. Vickers, filed a petition in the City Court of Reidsville against R. P. Balkcom, Warden of the State penitentiary, asserting that his sentence for burglary, rendered by the Superior Court of Butts County in 1959, was void for denial of such right. The warden's response controverted that assertion.
The bill of exceptions recites that upon the trial of that issue the petitioner testified categorically,
Seeking to refute this, the respondent introduced affidavits of the judge who presided and of the former solicitor general who represented the State at the sentencing complained of. The affidavit of the judge recounted the sentencing of this petitioner and recited that he read the indictment to him, that the petitioner pleaded guilty, and that he did not at any time ask the court for an attorney, for assistance, or for instruction as to his rights. That of the former solicitor general recited that while the affiant did not remember the facts of this particular occasion, he did recall that it was the custom and practice of the judge who presided at the sentencing of this petitioner to read the indictment to accuseds and inquire if they were guilty and not to accept a plea of guilty unless satisfied that they understood the nature of the charges against them.
The sentence complained of was also introduced into evidence. It is regular upon its face.
Upon conclusion of the habeas corpus hearing the trial judge found in favor of the petitioner's assertion of denial of counsel. He entered judgment ordering that the petitioner be remanded to the custody of the warden, to be held by him for the Butts County authorities, and recited that if Butts County did not take custody of him within 10 days he was to be released by the warden. The judgment provided further that if the petitioner should be reconvicted in Butts County, he was to be given credit on the sentence for the time already served on the sentence thus held void for denial of counsel.
1. The petitioner's testimony furnished evidence in support of his contention as to denial of counsel, and therefore the habeas corpus court's judgment in his favor on this contention must be affirmed. Balkcom v. Turner, 217 Ga. 610, 123 S.E.2d 918.
The contention is made here by the respondent that the petitioner's testimony as to denial of counsel, being uncorroborated and in conflict with the other evidence, is insufficient to overcome the presumption of regularity of the sentence and carry the burden of proof by a preponderance of the evidence. Therefore, they contend, the judgment in his favor was erroneous.
The questions thus raised are of considerable importance, and are now recurring in the flood of habeas corpus proceedings following in the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which held that the benefit of counsel provision of the United States Constitution's Sixth Amendment was made obligatory upon the states by the Fourteenth Amendment. Therefore, we deem a discussion of the reasons for our rejection of this contention to be merited.
Some jurisdictions, particularly the Federal courts, have sustained this contention in two main situations: (1) where the review is of the habeas corpus court's ruling against the petitioner's assertion of denial of counsel; and (2) where the review is of the habeas corpus court's ruling in favor of his assertion of denial of counsel. It is significant that the case at bar involves the second situation.
To hold, upon this review of a finding in his favor, that a petitioner in habeas corpus claiming denial of his right to counsel does not by his testimony alone carry the burden of proof so as to authorize the finding in his favor, would be contrary to the law of this State. This is true for several reasons, each independent of the others.
This court is a court alone for the 'correction of errors of law * * *' Ga. Constitution, Art, VI, Sec. II, Par. IV (Code Ann. § 2-3704). Such limitation upon this court's reviewing power played a decisive part in the long struggle for its establishment; one of the charges of the opposition being that this court would re-try factual issues. See, 'The Supreme Court of Georgia: An Account of Its Delayed Birth,' Justice Bond Almand, 6 Ga.B.J. 95, reprinted in 'A History of the Supreme Court of Georgia,' by the Georgia Bar Association.
This court has expressly recognized and adhered to this limitation upon its reviewing power. One decision recounts: Lockwood v. Daniel, 194 Ga. 544, 548, 22 S.E.2d 85. The same principle applies to findings of fact by a trial court sitting in lieu of a jury. That this court has hewed strictly to such line is manifest from its many decisions refusing to disturb trial court findings of fact where there was any evidence to support them. See collection of cases, annotation to Code § 70-202; 3 West's Ga. Digest, Appeal and Error, k1010, 1011, pp. 271-277.
The Federal courts, which subscribe to the rule sought to be invoked here, have a standard different from ours for evaluating the evidence of a trial court upon review. Instead of affirming if there is 'any evidence' to support the finding, which the Georgia rule requires, the Federal courts' inquiry is whether the evidence is 'substantial,' or whether the finding is 'clearly erroneous' or 'manifestly wrong.' 28 U.S.C.A. § 2253, annotation, note 75; 26 Modern Fed.Prac. Digest, Habeas Corpus, k113(12) d, p. 972. This is also true of some of the State appellate courts. There is a wide variance throughout the judicial systems of the fifty States as to the extent of review of findings of fact. See 5 Am.Jur.2d 274-278, Appeal and Error, §§ 833-835; 5A C.J.S. Appeal and Error, § 1642, pp. 196-228.
But regardless of the reviewing power in other jurisdictions, the Constitution of Georgia, by limiting the review of this court to consideration of errors of law only, prohibits us from setting aside a judgment, such as here, where there is any evidence to support it
The decisions of this court, pursuant to the constitutional provision above referred to, have consistently refused to set aside habeas corpus judgments holding the restraint illegal where there was any evidence to support them.
In Starr v. Barton, 34 Ga. 99 (), decided one hundred years ago, this court, in reviewing a judgment in favor of the petitioner, stated the rule applicable in habeas corpus cases: 'The judgment of the Court upon the facts, in cases of habeas corpus, is analagous to the verdict of the jury, and will not be disturbed by the reviewing Court if there be enough to support it, although there may have been other testimony strongly in conflict with it.' The comparison to a jury verdict obviously refers to the 'any evidence' rule which obtains as to review of facts found by a jury.
In Balkcom v. Turner, 217 Ga. 610, 123 S.E.2d 918, supra (), decided only two and a half years ago, the same contention now urged was involved. Upon the habeas corpus hearing, the petitioner's testimony that he had asked for counsel before being sentenced but had been refused it, was the only testimony on the issue of denial of counsel. The trial court found in his favor on that issue and this court affirmed, stating that in view of the undisputed facts such judgment was not only authorized but was demanded. It thus held the petitioner's uncorroborated testimony sufficient to carry the burden of proof.
The case at bar is controlled by the above decisions.
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