Harris v. Norris
| Decision Date | 13 September 1939 |
| Docket Number | 12936. |
| Citation | 4 S.E.2d 840,188 Ga. 610 |
| Parties | HARRIS v. NORRIS, Sheriff. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The failure of a justice of the peace to transcribe the testimony at a commitment trial does not render void a judgment committing the defendant to jail, so as to authorize his discharge upon writ of habeas corpus.
2. The mere failure of a justice of the peace to inform a defendant at his commitment trial of his right to procure counsel does not disclose a violation of that constitutional provision guaranteeing to every person accused of crime the privilege and benefit of counsel.
3. Under these rulings, the judge did not err in refusing to discharge the defendant on habeas corpus.
Randall Evans, Jr., Jack D. Evans, and James R. Evans, all of Thomson, for plaintiff in error.
J Cecil Davis, Sol. Gen., of Warrenton, for defendant in error.
Marvin Harris was arrested under a warrant charging him with being an accessory before the fact to the murder of Charlie Jackson. Code, § 26-603. In accordance with §§ 27-407, 27-208, providing in effect that where one is arrested under a warrant charging him with the commission of a criminal offense, he is, at his election, entitled to a commitment hearing for the purpose of determining if 'there is sufficient reason to suspect' his guilt, so as to require him to appear and answer before the court competent to try him, the defendant was taken before a justice of the peace and a commitment trial had. The justice, finding that there was probable cause to suspect the guilt of the defendant committed him to jail. Thereafter the defendant presented to the judge of the superior court an application for habeas corpus, claiming that the commitment hearing accorded to him was illegal, and that his demand for another hearing had been refused. The judge issued the writ, and at the hearing remanded the accused to custody. He excepted to this judgment.
1. The attack made on the legality of the commitment hearing is twofold: First, that the defendant was not represented by counsel, and was not informed at or before the hearing that he was entitled to counsel, and that he did not know how to swear witnesses or how to make a statement; and second, that the committing magistrate did not reduce the evidence to writing, as required by the Code, §§ 27-405, 27-406.
'Any person restrained of his liberty under any pretext whatever, or any person alleging that another, in whom for any cause he is interested, is restrained of his liberty or kept illegally from the custody of the applicant, may sue out a writ of habeas corpus to inquire into the legality of such restraint.' Code, § 50-101. The question to be determined on the return of a writ of habeas corpus is the legality of the detention at the time of the hearing. Holder v. Beavers, 141 Ga. 217, 80 S.E. 715; Cross v. Foote, 17 Ga.App. 802, 88 S.E. 594; Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 310, 43 S.E. 780, 61 L.R.A. 739. The writ is never allowable as a substitute for a writ of error, or other remedial procedure to correct errors in the trial of a criminal case (Wells v. Pridgen, 154 Ga. 397, 114 S.E. 355; Strickland v. Thompson, 155 Ga. 125, 116 S.E. 593; Phillips v. Brown, 122 Ga. 571, 50 S.E. 361; Collins v. Hall, 92 Ga. 411, 17 S.E. 622; Marshall v. Griffin, 173 Ga. 782, 161 S.E. 622; Griffin v. Smith, 184 Ga. 871, 193 S.E. 777; Wells v. Newton, 101 Ga. 141, 28 S.E. 640; Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116; Wells v. Newton, 101 Ga. 141, 28 S.E. 640; Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116; Griffin v. Eaves, 114 Ga. 65, 39 S.E. 913; Tolleson v. Greene, 83 Ga. 499, 10 S.E. 120), but is 'the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its jurisdiction in passing the sentence by virtue of which the party is imprisoned, so that such sentence is not merely erroneous, but is absolutely void.' Wells v. Pridgen, supra. Though there is no appeal from the judgment of a justice of the peace committing a defendant to jail to await the action of the grand jury (Hyden v. State, 40 Ga. 476; Strickland v. Hamilton, 148 Ga. 820, 98 S.E. 471; Griggs v. Macon, 154 Ga. 519, 114 S.E. 899; Prime v. State, 44 Ga.App. 288, 161 S.E. 292), as in the case of final conviction and sentence, it is nevertheless true that the same rule is applicable thereto, that is, that the writ of habeas corpus cannot be employed to correct errors or irregularities in the commitment hearing, but the judgment committing the defendant must be absolutely void. Sanders v. Pachal, 186 Ga. 837, 199 S.E. 153. See Code, §§ 27-422, 50-116, 50-117, 110-708. In regard to the second attack made in the present case on the judgment committing the defendant to jail, while, under the Code, §§ 27-405, 27-406, it was the absolute duty of the justice in such case to 'cause an abstract of all the evidence to be made' and return the same to the superior court, it cannot be said that the failure of the justice to comply with the duty thus imposed upon him so vitiates the hearing and commitment as to render them absolutely void, and authorize, under the above authorities, the grant of the writ of habeas corpus. The provisions of the above sections are for the benefit of the State as well as the defendant; and while the duty there imposed upon the justice is clearly mandatory, it can have no reasonable relation to the legality of the commitment. His failure to comply with this requirement does not affect his jurisdiction, or strip him of his power and authority to render a judgment of commitment in such case. In Kansas, as is true in many other States, no person can be tried on an information charging him with a criminal offense, unless there has been a valid commitment hearing. The return of the proceedings before the magistrate is necessary to invest the trial court with jurisdiction to try the accused, and it is upon this return that the information is filed. 16 C.J. 343. It was held, however, in State v. Flowers, 58 Kan. 702, 50 P. 938, that the failure of the clerk of the committing court to reduce the evidence to writing as required by law was not jurisdictional and did not vitiate the preliminary hearing and the judgment of the magistrate committing the defendant, so as to deprive the district court of jurisdiction to try the defendant for the offense charged against him. It follows that the defendant was not entitled to be discharged on habeas corpus on this ground.
2. As pointed out above, it is also contended by the defendant that he was denied the right to counsel as guaranteed him by the constitution, and therefore that the court had no authority or power to render judgment committing him to jail. We are of the opinion that the defendant was not denied counsel, in violation of the constitution; and therefore it is unnecessary for us to determine at this time whether, if such had appeared, the judgment would have been void, and would have entitled him to be discharged on habeas corpus. See cases cited in Aldredge v. Williams, Ga.Sup., 4 S.E.2d 469. The pertinent provision of our constitution, in so far as material here, is as follows: 'Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel.' Const. art 1, § 1, par. 5, Code, § 2-105. This provision absolutely guarantees one accused of a crime the right to have the assistance of counsel and be heard at his trial, and was no doubt inserted in the constitution to abrogate the common-law practice under which prisoners accused of felony were denied such right, and to restrain the legislature from denying it by statute. See State v. Yoes, 67 W.Va. 546, 68 S.E. 181, 140 Am.St.Rep. 978. In the present case the defendant claims that he was denied counsel only in so far as the failure of the justice to inform him of his right may constitute such a denial. It has been held that a showing that a defendant had no counsel at his trial, and was not informed by the...
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