Massey v. Smith

• Decision Date: 10 October 1968
• Docket Number: No. 24793,24793
• Citation: 224 Ga. 721,164 S.E.2d 786
• Parties: DeWayne MASSEY v. Lamont SMITH, Warden.
• Court: Georgia Supreme Court

Page 786

164 S.E.2d 786

224 Ga. 721

DeWayne MASSEY v.Lamont SMITH, Warden.

No. 24793.

Supreme Court of Georgia.

Oct. 10, 1968.

Rehearing Denied Nov. 7, 1968.

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, B. D. Dubberly, Jr., Deputy Asst. Atty. Gen., Glennville, John W. Hinchey, Atlanta, for appellee.Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This is a petition for a writ of habeas corpus alleging an unconstitutional conviction and sentence of death for rape.This is the third appearance of this case in this court.SeeMassey v. State, 220 Ga. 883, 142 S.E.2d 832;Id., 222 Ga. 143, 149 S.E.2d 118, cert. denied385 U.S. 36, 87 S.Ct. 241, 17 L.Ed.2d 36.After a hearing the trial court remanded the applicant to the custody of the respondent and the appeal is from that judgment.Held:

1.Enumeration of error number 1 complains that the applicant's conviction and sentence are illegal under the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution because the grand jury which indicted him and the traverse jury which convicted him were illegally composed for the reason that Negroes, women, was persons of limited economic means were systematically excluded, that the manner of selecting such juries from racially segregated tax rolls was inherently discriminatory, and that the selection of such juries from the tax rolls resulted in persons of limited economic means being grossly underrepresented thereon.

The applicant in this case is a white man who was convicted on July 21, 1965, of raping a Negro woman for which he was indicted originally in October, 1964, and re-indicted in July, 1965.

This enumeration of error is without merit.The principles enunciated in Whitus v. Ga., 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, do not have retroactive application in cases such as here and, therefore, the question of the alleged unconstitutionality of the jury selection and composition based on race cannot be considered on this basis.Strauss v. Grimes, 223 Ga. 834, 158 S.E.2d 404, cert. denied, 391 U.S. 903, 88 S.Ct. 1651, 20 L.Ed.2d 417.

Furthermore, 'the defendant was a male white citizen.He does not show how he was harmed or prejudiced by the systematic exclusion of women and negroes from traverse juries, or how this exclusion violated any right of his.It is a wellknown axiom of the law that this court will not consider a constitutional attack upon an act where the party attacking the same 'does not allege any injury accruing to him by the enforcement of the act' and 'a court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has, therefore, no interest in defeating it,' and 'a party must be prejudiced by the enforcement of a statute, or the courts will not listen to an objection by him to its constitutionality.'Reid v. Mayor, etc., of Eatonton, 80 Ga. 755, 757, 6 S.E. 602;Plumb v. Christie, 103 Ga. 686, 30 S.E. 759, 42 L.R.A. 181.'Griffin v. State, 183 Ga. 775, 777(1), 190 S.E. 2, 4.

Nor is the requirement that jurors be selected from a tax digest unconstitutional.Brown v. Allen, 344 U.S. 443(7), 73 S.Ct. 397, 97 L.Ed. 469.Accordingly it follows that applicant cannot complain that persons of limited economic means were underrepresented on the juries because they were not on the tax rolls.Roach v. Mauldin, D.C., 277 F.Supp. 54;Id., 5 Cir., 391 F.2d 907.

2.In view of our holding in Division 1, applicant's enumeration of error number 2 alleging that the court erred in finding that it could not determine the number of white and Negro persons on the jury panels and enumeration of error number 5 refusing to admit certain depositions attempting to show an illegally composed jury are not questions which this defendant can raise.

3.Enumeration of error number 3 complains that applicant's conviction and sentence are unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution in that he was tried and convicted and received a death sentence by virtue of the failure of the traverse jury to recommend mercy.The traverse jury which convicted and sentenced the applicant had been purged under Code Ann. § 59-806(4) of members who were conscientiously opposed to capital punishment.Under the ruling in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776(decided June 3, 1968), the sentence of death in the instant case is illegal.The verdict and judgment for rape are legal.

The law of Georgia provides that the crime of rape shall be punished by death, unless the jury recommends mercy, in which event the punishment shall be life imprisonment, provided however, the jury may fix the punishment of imprisonment for not less than one year nor more than 20 years.Ga.L.1960, p. 266(Code Ann. § 26-1302);Ga.L.1963, pp. 122, 123(Code Ann. § 27-2302).This law makes no provision for punishment other than death where the jury finds the defendant guilty of rape, unless the jury recommends mercy.Without a recommendation of mercy, the court has no authority to enter a sentence other than death.

'Under the ruling in the Witherspooncase, supra, the sentence of death in the instant case is illegal.Yet, under the provisions of Code§ 6-1610, this court has the power 'to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case.'Accordingly, the verdict and judgment of conviction for rape are affirmed.The sentence imposed on the verdict is reversed with direction that the trial court impanel a jury selected as in a capital case for the submission to it of the sole question: Should the defendant be recommended to mercy and sentenced according to Code Ann. § 26-1302(Ga.L.1960, p. 266)?In the selection of the jury for such trial, no member of the jury panel shall be excused for cause solely because of his being opposed to capital punishment.However, the State will have the right to challenge for cause any prospective juror who states that his reservations about capital punishment would prevent him from making an impartial decision as to a defendant's guilt of rape.Furthermore, the State is not prevented from asserting the right to exclude from the jury any...