Green v. Caldwell
| Decision Date | 23 October 1972 |
| Docket Number | No. 27431,27431 |
| Citation | 193 S.E.2d 847,229 Ga. 650 |
| Parties | Hershel GREEN v. E. B. CALDWELL, Warden. |
| Court | Georgia Supreme Court |
Hershel Green, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Frank M. Palmour, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Hershel Green is an indigent inmate of Georgia State Prison serving a 20-year sentence for burglary imposed in Lee Superior Court on May 4, 1961, and a concurrent 5-year sentence for escape imposed in Gwinnett Superior Court on May 21, 1970. In November, 1971, he initiated a habeas corpus proceeding in Tattnall Superior Court, and after a hearing the habeas corpus judge remanded him to the custody of the respondent warden.
The appeal here is from that order. Green asserts numerous errors including the refusal of the habeas corpus judge to subpoena witnesses; the refusal of the habeas corpus judge to appoint counsel; the refusal of the habeas corpus judge to allow lay counsel after refusing to appoint counsel; the failure of the habeas corpus judge to read or consider Exhibit A to his petition; the finding of fact of the habeas corpus judge that the petitioner failed to inform his counsel at the burglary trial of the names of defense witnesses; that he was denied a continuance to get witnesses; that he was seen by the jurors in chains and irons while filthy and unkempt, one of whom was his accuser as a member of the grand jury, which was then followed by a denial of a first stage appeal, resulting from his own ignorance and the failure of the trial judge or counsel to advise him of his right to appeal. Held:
1. The assertion that the habeas corpus judge erred in refusing to subpoena certain witnesses as requested by the petitioner is without merit. It appears from the transcript that subpoenas were issued for their attendance but the hearing judge refused to compel their attendance after making a finding that one of the witnesses was desired by petitioner to assist him as lay counsel; that one would testify only as to the escape sentence which was not relevant since no ruling was made on the escape sentence; that one would testify only on the issue of guilt or innocence; that petitioner had not tendered mileage or per diem to two witnesses who did not reside in the county where the hearing took place. This being a civil proceeding the petitioner, though indigent, was not entitled to have such witnesses at public expense. Dixon v. Caldwell, 228 Ga. 658(3), 187 S.E.2d 292.
2. The petitioner was not entitled to appointed counsel to represent him at the habeas corpus hearing. Chadwick v. Smith, 227 Ga. 753(2), 182 S.E.2d 896; Chatman v. Caldwell, 229 Ga. 337, 191 S.E.2d 63.
3. Nor was the petitioner entitled to the assistance of lay counsel, appointed or otherwise. The right of a person to prosecute his own cause in any court of this State, in person or by attorney, as guaranteed by the Constitution of Georgia (Art. I, Sec. I, Par. IV; Code Ann. § 2-104) refers to an attorney at law in the commonly accepted meaning of the term and as defined by the laws of this State. See Code Ann. §§ 9-101, 9-401. It does not include a layman inmate of the Georgia State Prison.
4. Under the evidence the hearing judge was authorized and did determine that the petitioner had failed to prove that Marvin Childers who served on the grand jury which indicted the petitioner...
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