Fowler v. Grimes, 14859.

Citation31 S.E.2d 174
Decision Date12 June 1944
Docket NumberNo. 14859.,14859.
PartiesFOWLER. v. GRIMES, Sheriff.
CourtSupreme Court of Georgia

31 S.E.2d 174

FOWLER.
v.
GRIMES, Sheriff.

No. 14859.

Supreme Court of Georgia.

June 12, 1944.


[31 S.E.2d 174]

Rehearing Denied July 11, 1944.

Writ of Certiorari Denied Dec. 4, 1944.

See 65 S.Ct. 266.

[31 S.E.2d 175]
Syllabus by the Court.

1. In the instant habeas corpus case, in which the applicant sought release from imprisonment after he had been convicted and sentenced to electrocution for the offense of murder, upon the ground, among others, that he was kept in custody of a United States deputy marshal throughout his trial, and was thereby deprived of the right to communicate privately and confidentially with his attorneys, the evidence authorized a finding that no request was made of the judge who presided in the murder case for an opportunity to confer privately, and that if such a request had been made it would have been granted. Accordingly, the judge who tried the habeas corpus case was authorized to find that no right of the accused in this respect had been violated.

2. Where a person who has been convicted of a Federal offense is brought into a court of this State, under habeas corpus, for trial on a charge of murder, and during such trial is kept in the personal custody of a United States deputy marshal, he cannot complain that the Federal government waived its strict right to exclusive custody in order that he might be tried for the State offense, nor can he complain that such Federal custody was not wholly released for the purposes of the latter trial. It follows that the trial for murder was not vitiated by the mere fact that the accused was kept in custody of the deputy marshal throughout such trial.

3. The verdict and sentence in the murder case was not void upon the ground that the accused was involuntarily absent from the court during deliberations of the jury, and at the time they reached their verdict; he having been taken by a deputy marshal to the Federal penitentiary in Atlanta beyond the limits of the county and of the judicial circuit in which the court was being held, but having been brought back and being present in the court room at the time the verdict was published.

4. Under the evidence, the judge trying the habeas corpus case was authorized to find that the accused in testifying against his codefendant who was next placed on trial, did so voluntarily and not by reason of any inducement whatever on the part of the solicitor-general as contended.

5. The order of the judge of the superior court, fixing a new date for execution after the original date had passed, was not void, as insisted, either because the defendant was involuntarily absent or because the order was signed in the office of the clerk and not in the court room.

(a) Nor, as applied to the facts, is the Code, § 27-2518, authorizing such procedure, unconstitutional, as contended.

(b) Under the pleadings and the evidence, the judge did not err in remanding the applicant to custody.

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Habeas corpus proceeding by Walter Fowler against T. R. Grimes, sheriff, of

[31 S.E.2d 176]

Fulton County. The writ was denied and applicant brings error.

Affirmed.

James R. Venable, J. L. Barwick, and Paul Crutchfield, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen, of Atlanta, H. G. Vandiviere, Sol. Gen, John S. Wood, both of Canton, and E. A. Stephens, of Atlanta, for defendant in error.

BELL, Chief Justice.

Walter Fowler filed an application for the writ of habeas corpus against J. M. Mount as sheriff of Fulton County. The case as made by his amended application and response was tried before Honorable Hugh M. Dorsey, one of the judges of Fulton superior court, who after hearing evidence from both sides denied the writ and remanded the applicant to custody. To this judgment the applicant excepted. After the case reached this court, the death of J. M. Mount, defendant in error, was suggested, and T. R. Grimes, his successor as sheriff, was by consent made defendant in error.

Fowler was tried in the superior court of Forsyth County for the offense of murder, alleged to have been committed in that county in February, 1943. The trial began on May 5, 1943, and ended on May 6 by a verdict of guilty without recommendation, whereupon he was sentenced to be electrocuted. He filed a motion for a new trial, which after amendment was overruled, and this judgment was reviewed and affirmed in Fowler v. State, 196 Ga. 748, 27 S.E.2d 557. In his application for the habeas corpus as thereafter filed and amended, he contended that the verdict of guilty, the original death sentence based thereon, and the subsequent order resentencing him, or fixing a new date of execution after the original date had passed, were void for various reasons alleged. The contentions so made will be more fully stated in the opinion.

1. At the time of his trial in Forsyth County, Fowler was serving a sentence in the Federal penitentiary in Atlanta. He was brought to Forsyth County by a United States deputy marshal for the purpose of trial, under a habeas corpus ad prosequendum. He contends that because he was kept in the personal custody of the deputy marshal throughout the trial, he was deprived of the right to communicate private ly and confidentially with his attorneys, as he was entitled, under the Federal and State constitutions and the statute law of Georgia. Code, § 1-815, Const.U.S. Amend. 14, § 1, §§ 2-102, 2-103, 2-8505, Const.Ga. art. 1, § 1, pars. 2, 3 and art. 12, par. 5, and §§ 38-418, 38-419.

It appears that about a month before the trial, the judge appointed Honorable H. E. Kirby, an attorney of Cumming, in Forsyth County, and Honorable Howell Brooke, an attorney of Canton, in the adjoining county of Cherokee, to represent the accused, and they did represent him throughout the trial. They also filed a motion for a new trial, which they later amended, and on denial of the motion brought the case to the Supreme Court. There is no contention that these attorneys were not able, faithful, and diligent; the sole contention as to this phase of the case being that both they and the accused were denied the right of private communication because of the constant presence of the deputy marshal, who had and continued to have the accused in custody.

The applicant testified that on April 22, 1943, he was carried by a deputy marshal to Cumming, Georgia, where he was met by his counsel, Mr. Brooke and Mr. Kirby, in the presence of the deputy marshal; that at this time his trial was postponed until May; that he talked with these attorneys only one time during the trial, and that they requested the court to allow them to have a private conference with him, which was refused. He also testified that Mr. Kirby came to see him one time in the Federal penitentiary and talked with him there in the presence of an officer; that Mr. Brooke did not talk to him in Fulton tower--"I mean to say that Mr. Brooke never talked to me in the Fulton tower." He testified that he considered Mr. Brooke as his leading counsel, and the record contains nothing to indicate that both of these attorneys were not friendly to him at the time of the habeas corpus trial, although they did not then appear as his counsel. Each attorney made an affidavit, which appears in the present record. In neither affidavit is there any statement that the court refused to allow private communication between them and the accused. The only statement in the entire record to this effect was the testimony of the applicant himself, which was directly contradicted in a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT