Burston v. Caldwell, 27026

• Decision Date: 09 March 1972
• Docket Number: No. 27026,27026
• Citation: 187 S.E.2d 900,228 Ga. 795
• Parties: James BURSTON v. E. B. CALDWELL.
• Court: Georgia Supreme Court

Page 900

187 S.E.2d 900

228 Ga. 795

James BURSTON v. E. B. CALDWELL.

No. 27026.

Supreme Court of Georgia.

March 9, 1972.

James Burston, pro se.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Dorothy T. Beasley, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

James Burston filed an application for the writ of habeas corpus against E. B. Caldwell, Warden of the Georgia State Prison. His petition alleges that he was convicted in 1935 of several robberies and sentenced from 3 to 4 years on one, 12 to 20 years on another, and 20 to 30 years on another; that he did not have effective assistance of counsel within the meaning of the Sixth Amendment of the United States Constitution because he did not see his counsel until he was brought to the courthouse to be tried and only had about a 20 minute talk with him; that he made known to his counsel the existence of several witnesses in his behalf for whom he desired subpoenas and of certain factors he desired investigated; that his counsel did not prepare his case and attempted to get him to plead guilty; that he was not formally arraigned and did not waive such; that he was denied a preliminary hearing; and that the grand and traverse juries were inherently discriminatory because they were selected from the tax receiver's books which were kept on a racially segregated basis. The respondent filed an answer.

The record shows that the petitioner escaped from prison after serving less than two years of his sentences and was on escape some thirty-four years. He started serving his sentence again on February 13, 1971.

The trial court found: 'The testimony of the petitioner himself is that he was charged with armed robbery along with two others and that a lawyer did come to the jail to see them and stayed about twenty minutes but he says that the lawyer did not talk to him at all. He further said that he did not see his lawyer again until he got to the courtroom. In his petition, he says that he was found guilty by a jury and the record confirms this. However, in the hearing before this Court, he says that, 'When we got upstairs nobody asked me anything and they sentenced me to prison.' He said on cross-examiantion, however, that he pled not guilty to the charges but he could not remember being tried by a jury and that he did not see a jury in the courtroom where he stayed only about 15 minutes. This is in direct conflict with what the record shows since it shows that a jury trial was had by all defendants and that each of them were found guilty by a jury. It would have been a physical impossibility to have even selected a jury in 15 minutes. He did not remember who the solicitor general was in 1935 when he was tried nor the judge and did not know if they were still living or not. He also did not know the name of his lawyer. He said the reason that he had not filed an earlier habeas corpus petition was that they did not bring him back to Georgia any earlier. Petitioner says on page 24 that he did talk to his lawyer before the trial and that the lawyer asked him if he was with the other boys, and he said, 'Yeah, they got us all for the same thing,' and that he left and talked with the 'other guys' about twenty or thirty minutes. The record shows that this was a joint trial with two other co-defendants. The petitioner further said that his counsel was ineffective in that he told him about some witnesses that he was living with at the time he was arrested which were not subpoenaed. He now says that this is not...