Hill v. Balkcom

• Decision Date: 11 February 1957
• Docket Number: No. 19583,19583
• Citation: 213 Ga. 58,96 S.E.2d 589
• Court: Georgia Supreme Court
• Parties: Harold Ellison HILL v. R. P. BALKCOM, Jr., Warden.

Page 589

96 S.E.2d 589

213 Ga. 58

Harold Ellison HILL v. R. P. BALKCOM, Jr., Warden.

No. 19583.

Supreme Court of Georgia.

Feb. 11, 1957.

Rehearing Denied Feb. 25, 1957.

Syllabus by the Court

1. Where counsel, representing a defendant in a criminal case, is a member of the bar in good standing, and, in representing his client in the trial of his case, gives his complete loyalty to his client, serves him in good faith to the best of his ability, and his service is of such a character as to preserve the essential integrity of the proceedings in a court of justice, the requirements of due process within the Fourteenth Amendment of the Federal Constitution and Art. I, Sec. 1, par. 3 of the Constitution of Georgia are met.

2. A new trial will not be granted solely because of the exclusion of evidence which, if it had been admitted, could not have produced a different result.

J. E. B. Stewart, Atlanta, for plaintiff in error.

George Hains, Sol. Gen., Augusta, Eugene Cook, Atty. Gen., E. Freeman Leverett, Asst. Atty. Gen., J. Max Cheney, Deputy Asst. Atty. Gen., for defendant in error.

ALMAND, Justice.

The judgment under review is one refusing to discharge the plaintiff in error after a hearing on his petition for writ of habeas corpus. In his petition, plaintiff asserted that he was being unlawfully and illegally restrained of his liberty by the respondent, the Warden of the Georgia State Penitentary, in violation of his rights under the Sixth and Fourteenth Amendments of the Constitution of the United States, and under (a) paragraph 2, Code Ann. § 2-102, (b) paragraph 3, Code Ann. § 2-103, and paragraph 5, Code Ann. § 2-105, of article I, section 1, of the Constitution of Georgia, in that he did not have the assistance or benefit of counsel in the trial of the case in which he was convicted of murder, and that he was thereby denied due process of law. The general charge as to the lack of representation by counsel was: 'that counsel appointed to represent him was either so ignorant, inexperienced, or grossly lacking in appreciation of his responsibilities as to amount to virtually no representation, and that accordingly petitioner was not given the full benefit of his right to counsel. Petitioner further shows that counsel appointed to represent him was so ignorant, negligent, or unfaithful that petitioner was virtually unrepresented and did not in any real or substantial sense have the aid of counsel and that he was thereby denied due process of law.' The specific allegations in support of this general allegation were: (a' the failure of counsel to call character witnesses in his behalf at the trial of the case, and (b) the failure of counsel to move for a change of venue.

The record discloses that Hill was indicted for murder on October 21, 1954; that, on his trial, he was found guilty and sentenced to death; that his motion for new trial was denied by the trial court and this judgment was affirmed by this court. Hill v. State, 211 Ga. 683, 88 S.E.2d 145. Hill subsequently filed his extraordinary motion for new trial, which the trial judge refused to sanction, and this court refused to issue a mandamus nisi requiring the trial judge to sanction this motion.

1. On the question of whether Hill was virtually without the benefit of counsel on his original trial, the evidence before the habeas corpus court shows without conflict that Mr. McGahee, the attorney who represented him on his trial, was first appointed by the...