Hunt v. Hopper

• Decision Date: 04 April 1974
• Docket Number: No. 28710,28710
• Citation: 232 Ga. 53,205 S.E.2d 303
• Parties: John Thomas HUNT v. Joe S. HOPPER.
• Court: Georgia Supreme Court

Page 303

205 S.E.2d 303

232 Ga. 53

John Thomas HUNT v. Joe S. HOPPER.

No. 28710.

Supreme Court of Georgia.

April 4, 1974.

Millard C. Farmer, Jr., Steven E. Fanning, Newnan, for appellant.

Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., David J. Bailey, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

NICHOLS, Presiding Justice.

On May 24, 1972 John Thomas Hunt was convicted of armed robbery and sentenced to 15 years imprisonment. On December 14, 1972 that conviction was affirmed by this court. Hunt v. State, 229 Ga. 869, 195 S.E.2d 31. Thereafter the present petition for a writ of habeas corpus was filed. While numerous questions were raised in such petition as originally filed, all but two questions were abandoned prior to the trial court's judgment. The two questions presented to the trial court for decision and to this court on review are whether the conviction must be set aside because counsel was not appointed to represent him (1) prior to a pre-indictment line-up and (2) prior to a preliminary hearing at which he was bound over to the grand jury. Held:

1. The failure to appoint counsel to represent the prisoner to a pre-indictment line-up which took place prior to the prisoner's commitment hearing did not invalidate the prisoner's conviction. See Hunt v. State, 229 Ga. 869, 195 S.E.2d 31, supra; Hicks v. Caldwell, 231 Ga. 575, 203 S.E.2d 212, and cits.

2. A commitment hearing was held shortly after the prisoner's arrest and the record, including exhibits introduced by the prisoner, make it doubtful as to whether he was represented by counsel. In the case of Phillips v. Stynchcombe, 231 Ga. 430, 432, 202 S.E.2d 26, it was held: 'We know that cross examination of the state's witnesses at a commitment hearing often results in an accused obtaining valuable information for trial of the case. However, it should be remembered that the purpose of a commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether he should stand trial. See Code § 27-407; Cannon v. Grimes, 223 Ga. 35, 36, 153 S.E.2d 445; Smith v. Brown, 228 Ga. 584, 585, 187 S.E.2d 142, supra.

'The federal courts share the view which we take. They hold that an accused has no constitutional right to a preliminary hearing. See Dillard v. Bomar, 342 F.2d 789, 790 (6 Cir.); Woods v. Texas, 404 F.2d 332 (5 Cir.).

'The appellant did not raise this issue upon his criminal trial or appeal. He does not allege here and nothing in the records shows that he asked for and was denied a commitment hearing prior to his indictment by the grand jury. Since he has been indicted, tried and convicted, however, no useful purpose could now be served by remanding his case for a finding as to whether there was a commitment hearing. This fact does not affect the legality of his present detention, which is the only issue in a habeas corpus hearing. Johnson v. Plunkett, 215 Ga. 353(5), 110 S.E.2d 745; Ballard v. Smith, 225 Ga. 416(4), 169 S.E.2d 329; Thrash v. Caldwell, 229 Ga. 585(1), 193 S.E.2d 605, supra.'

Accordingly, where a commitment hearing was held, assuming but not deciding that he was not represented by counsel, the question is whether the prisoner was harmed. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

As a result of the commitment hearing the prisoner was released on bond. The only testimony adduced at such...