Kitchens v. Smith
| Decision Date | 10 September 1970 |
| Docket Number | No. 25924,25924 |
| Parties | James M. KITCHENS v. S. Lamont SMITH, Warden. |
| Court | Georgia Supreme Court |
Syllabus by the Court
It was not error to remand the prisoner to the custody of the warden.
James M. Kitchens, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, William R. Childers, Jr., Asst. Attys. Gen., Atlanta, for appellee.
This is an appeal in a habeas corpus case from a judgment remanding the prisoner to the Warden of the Georgia State Prison at Reidsville. His petition alleged that he was convicted in the Superior Court of Fulton County in 1941; that he was tried without benefit of counsel; that he was unable to obtain counsel because of his impoverished condition; that he was not advised of his right to counsel; and when he requested counsel, he was advised that there was no provision for furnishing him counsel.
The record shows that he was convicted of robbery on December 8, 1944, and sentenced to serve 5 to 10 years. After serving a few months, he escaped and was absent from the State until he was returned to Georgia upon completion of the service of a sentence in Tennessee. The trial court in Fulton County, upon his return, reduced his sentence to 3 to 6 years, and it is under this sentence that he is now serving.
On the trial of the habeas corpus case the prisoner testified that he did not have a lawyer at the time he was tried. He did not testify, or offer any evidence, that he wanted a lawyer, asked for one, or made any effort to get one, or that because of his poverty, or for any other reason, he was unable to hire a lawyer.
The testimony that he did not have a lawyer is not sufficient to bring this case within the rulings made in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, for there the court found that the petitioner appeared without funds and without counsel and asked the court to appoint counsel for him, but this was denied on the ground that the State law permitted appointment of counsel only where the person is charged with a capital offense.
The present case is controlled by Nichols v. Heffner, 222 Ga. 706, 708, 152 S.E.2d 393, 395. There this court held that the court did not err in remanding the petitioner to the custody of the warden, as 'there was no evidence before the trial judge that the petitioner was unable to employ counsel or that either he or his parents...
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Kitchens v. Smith
...one, or made any effort to get one' or that 'because of his poverty, or for any other reason, he was unable to hire a lawyer.' 226 Ga. 667, 177 S.E.2d 87—88 (1970). As this Court has said, however, '(I)t is settled that where the assistance of counsel is a constitutional requisite, the righ......
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...or made any effort to get one' or that 'because of his poverty, or for any other reason, he was unable to hire a lawyer.' 226 Ga. 667, 177 S.E.2d 87--88 (1970).' A request for an attorney is now irrelevant. But more importantly, the only evidence of indigency, at the time of the conviction,......
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Bowen v. Brown, 30200
...His testimony is supported by his statement signed prior to his guilty plea. Gay v. Smith, D.C., 294 F.Supp. 265; Kitchens v. Smith, 226 Ga. 667, 177 S.E.2d 87 (1970). 2. If appellant was sentenced to one year consecutive on May 13, 1974, he is entitled to attack that sentence by habeas cor......
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Kitchens v. Smith, 25924
...R. Childers, Jr., Asst. Attys. Gen., Atlanta, for appellee. Syllabus Opinion by the Court MOBLEY, Presiding Justice. In Kitchens v. Smith, 226 Ga. 667, 177 S.E.2d 87, this court held that the appellant at the habeas corpus hearing did not prove his contention that he was without counsel due......