Krist v. Caldwell, 27711

• Decision Date: 10 May 1973
• Docket Number: No. 27711,27711
• Citation: 230 Ga. 536,198 S.E.2d 161
• Parties: Gary Steven KRIST v. E. B. CALDWELL, Warden.
• Court: Georgia Supreme Court

Page 161

198 S.E.2d 161

230 Ga. 536

Gary Steven KRIST v. E. B. CALDWELL, Warden.

No. 27711.

Supreme Court of Georgia.

May 10, 1973.

Gary Steven Krist, pro se.

Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Daniel I. MacIntyre, Asst. Attys. Gen., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

Gary Steven Krist, being confined in the State Penitentiary at Reidsville under a life sentence imposed after his conviction of the offense of kidnapping for ransom, filed his pro se petition for the writ of habeas corpus contending therein that his conviction was illegal on various grounds therein set out. The writ was duly issued and after a lengthy hearing he was remanded to the custody of the warden. He appealed and he enemerates in this court 29 grounds of alleged error. The nature of the issues presented, and so much of the facts and evidence as are necessary to an understanding of the rulings made, will be set forth in the opinion.

1. The petition for habeas corpus was filed on December 23, 1971, in the Superior Court of Tattnall County. In it petitioner alleged in the first paragraph thereof that he 'is confined in custody at the Georgia State Prison in Tattnall County, Georgia, by the respondent who is the warden of that institution.' The hearing on the petition was held on January 27, January 28, and March 1, 1972, before the Judge of the Superior Court of Tattnall County. The order appealed from was entered on the 11th day of November, 1972. In it the trial court found that the petitioner 'is now confined in the State Prison at Reidsville, Georgia.' In his first ground of enumerated error, petitioner contends that this finding is false, that in fact at the time the order was entered he was confined at the Georgia Diagnostic and Classification Center in Jackson, Georgia, in Butts County. He contends that the falsity of this finding indicates bias on the part of the trial judge and such incompetence as to vitiate the entire order. It is manifest that this finding was demanded by the record before the court at the time the order was entered and that it would have necessitated the court's going outside the record for it to have made any other finding.

Appellant also complains of other findings of the court as being unsupported by the record, and which, he contends, the court necessarily had to go outside the record in order to make. There is no merit in any of these contentions. The reference in the order to the date of the commission of the crime of which appellant was convicted as being 1969, when, in fact, it was committed in 1968, is plainly an inadvertence. It is not apparent that any harm resulted to the petitioner from this. See Bateman v. Bateman, 224 Ga. 20, 21, 159 S.E.2d 387. Finally, appellant was convicted of the offense of kidnapping for ransom. At the time of the commission of the crime, former Code Ann. § 26-1603 was in effect and it provided the death penalty for that offense, or, upon the recommendation of the jury, life imprisonment. The appellant was sentenced to life imprisonment. Under these circumstances, the finding of the habeas corpus court that he was sentenced to the minimum possible sentence for the offense of which he was convicted was an accurate statement of the law. None of the matters complained of in enumeration of error No. 1 show cause for reversal.

2. The test as to whether unfavorable newspaper publicity has so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity. Dutton v. State, 228 Ga. 850, 852, 188 S.E.2d 794. Appellant did not move for a continuance or a change of venue at the trial because of unfavorable newspaper publicity. Assuming, but not deciding, however, that he may assert for the first time in a petition for habeas corpus that he did not receive a fair trial on this account, the record does not support this contention. The transcript of the voir dire examination of the prospective jurors held prior to the trial was introduced as an exhibit in the habeas corpus hearing. It shows without dispute that the jurors who were selected to try the accused had formed no fixed opinion as to his guilt or innocence and were perfectly impartial between him and the state, notwithstanding the wide newspaper publicity which was given to the case before the trial. Under these circumstances, the habeas corpus court did not err in overruling the petitioner's contention respecting the unfavorable newspaper publicity, and there is no merit in his grounds of enumerated error numbered 2, 3 and 4.

3. In his appeal to this court from his conviction and sentence appellant raised questions as to the legality of the search of his automobile and the admissibility of evidence seized in that search. This court found that the search was made pursuant to a lawful warrant issued upon probable cause. Krist v. State, 227 Ga. 85, 90, 179 S.E.2d 56. In grounds of enumerated error numbered 5 through 10, appellant complains of the refusal of the habeas corpus court to set aside his conviction because of the admission of this evidence. In grounds 12, 13 and 14, appellant contends that the admission of certain other items of physical evidence on his trial constituted a denial of due process and equal protection of the law. These grounds raise, at most, questions of the improper admission of such evidence. In ground 11, appellant attempts to raise the validity of the sentence to life imprisonment for the crime of kidnapping for ransom, his basic contention being that the Georgia law does not make kidnapping for ransom a separate crime....