Brawner v. Smith, 25131

• Decision Date: 08 May 1969
• Docket Number: No. 25131,25131
• Citation: 225 Ga. 296,167 S.E.2d 753
• Parties: Curtis BRAWNER v. S. Lamont SMITH, Warden.
• Court: Georgia Supreme Court

Page 753

167 S.E.2d 753

225 Ga. 296

Curtis BRAWNER v. S. Lamont SMITH, Warden.

No. 25131.

Supreme Court of Georgia.

May 8, 1969.

Rehearing Denied May 22, 1969.

Syllabus by the Court

1. The order of the court was a final judgment from which an appeal could be taken.

2. The case of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, will not be given retroactive application in a case in which no challenge to the array of jurors, on the ground of racial discrimination, was made at the time of the appellant's trial.

3. The court did not abuse its discretion in determining that incriminatory statements of the appellant, introduced in evidence on his trial, were voluntarily made after he had been fully advised of his constitutional rights.

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Courtney Wilder Stanton, Deputy Asst. Atty. Gen., Atlanta, for appellee.

MOBLEY, Justice.

This appeal is from a judgment in a habeas corpus case. The appellant was convicted of murder and given a death sentence on March 9, 1965. The judge hearing the habeas corpus proceeding made findings of fact and law, and determined that the appellant's conviction was not invalid on any ground made in the habeas corpus petition, but found that his sentence was illegal under the rulings made in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, because jurors had been excused for cause by reason of their conscientious opposition to capital punishment. The order noted that the Witherspoon case had been followed by this court in Miller v. State, 224 Ga. 627(8), 163 S.E.2d 730; and Arkwright v. Smith, 224 Ga. 764(1), 164 S.E.2d 796.

It was stated in the order as follows: 'In fashioning a remedy this court is aware that the full entitlement set forth in the decision of the Supreme Court of Georgia will require independent judicial action by the original sentencing court, i.e., the Superior Court of Elbert County, Georgia. The court has been advised that the competent authorities in Elbert County are prepared to initiate such action. Rather than enter an order declaring invalid the custody under which petitioner is currently being held, it is the court's opinion that the smooth administration of justice will be best furthered by a stay of these habeas corpus proceedings pending compliance by the Superior Court of Elbert County with the directions contained in the Witherspoon, Miller and Arkwright cases cited above herein.'

It was then ordered: that the 'proceedings in the matter be stayed for a period not to exceed 90 days * * *'; that the respondents be restrained and enjoined from carrying out the sentence of death by execution, and from quartering the appellant in that portion of the Georgia State Prison set aside for those awaiting execution; and that the appellant 'be remanded to the custody of the respondent who is directed to arrange for the return of petitioner to the lawful authorities of Elbert County, Georgia, for retrial, the only question to be decided by the court upon retrial will be the sentence imposed upon the verdict as stated in the Witherspoon case and in the Miller case.'

1. The respondent has filed a motion to dismiss the appeal on the ground that the order appealed from is not a final judgment. There is language in the order which indicates that this is true. However, the order decides all questions made in the case, and no provision is made for any further determination in the matter on a future hearing.

If the judge trying a habeas corpus case involving a person whose liberty is being restrained by virtue of a sentence imposed by a State court of record finds in favor of the petitioner, he is authorized to 'enter an appropriate order with respect to the judgments or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.' Ga.L.1967, pp. 835, 836 (Code Ann. § 50-127(7)). The judge in the present case exercised this authority by ordering the remand of the appellant to the custody of the warden, who was directed to arrange for his return to the lawful authorities of Elbert County for retrial on the question of his sentence only.

The only question before the court was the validity of the present confinement and the sentence under which he was restrained, and the judge had no authority to deal with a future imprisonment under another sentence. Balkcom v. Craton, 220 Ga. 216, 218, 138 S.E.2d 163; Balkcom v. Hurst, 220 Ga. 405, 139 S.E.2d 306; Dutton v. Knight, 223 Ga. 140, 153 S.E.2d 714. He had no authority to exercise any supervisory control over the appellant. His duty had been discharged when he made his findings of law and fact, and remanded the appellant to the custody of the warden, with directions that he be returned for retrial on the question of his sentence in the Superior Court of Elbert County. It was thus a final judgment, and one from which an appeal could be taken.

2. The first and second enumerations of error contend that the court erred in denying the appellant's petition for writ of habeas corpus on the ground that his conviction and sentence are unconstitutional under the due process and equal protection clauses of the United States Constitution because the appellant, a Negro, was indicted by a grand jury, and trial by a traverse jury, illegally composed due to racial discrimination. The court held that this ground was without merit since there was no challenge to the array when the appellant was tried.

The appellant introduced in evidence figures from the census of 1960 showing the number of white and non-white persons living in Elbert County, the composition of...