Salisbury v. Grimes

• Decision Date: 09 November 1967
• Docket Number: No. 24334,24334
• Parties: Henry Cook SALISBURY v. T. Ralph GRIMES, Sheriff.
• Court: Georgia Supreme Court

Page 412

158 S.E.2d 412

223 Ga. 776

Henry Cook SALISBURY v. T. Ralph GRIMES, Sheriff.

No. 24334.

Supreme Court of Georgia.

Nov. 9, 1967.

Syllabus by the Court

1. Mere allegations that one has been denied a constitutional right, without setting forth facts substantiating a violation of such right, is not a sufficient reason for setting aside a sentence on habeas corpus.

2. It is not a denial of equal protection of law guaranteed by the 14th Amendment of the United States Constitution for the jury to impose a harsher sentence upon a defendant following a successful appeal and award of a new trial.

Hoke Smith, William V. Hall, Jr., Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, Atlanta, for appellee.

ALMAND, Presiding Justice.

Henry Cook Salisbury, appellant, filed a petition for a writ of habeas corpus seeking his release from the custody of T. Ralph Grimes, Sheriff of Fulton County. Appellant's detention is by virtue of a conviction and sentence of thirteen years rendered during the November term, 1966, of the Fulton Superior Court. Appellant's amended petition for habeas corpus was based upon two grounds. First, that 'the grand jury that returned the indictment against the petitioner was drawn from a grand jury box illegally made up because of the action of the Jury Commissioners of the Superior Court of Fulton County in using as a starting point a jury list from which Negro citizens had been systematically excluded or disproportionately included, and completing said jury box by the use of tax returns wherein taxpayers were segregated by race. Such action in the preparation of the grand jury list acted to deprive petitioner of due process of law and the equal protection of the laws in controvention of the 14th Amendment to the Constitution of the United States. The jury box was in fact disproportionate' second, that the sentence under which he was being held was void 'in that his original sentence was for a term of ten (10) years and his sentence under which he is being held is a sentence for a term of thirteen (13) years, and to impose a harsher punishment upon a defendant following a successful appeal denies to petitioner equal protection of laws guaranteed by the 14th Amendment to the Constitution of the United States.' Further, appellant alleged that he brought the 'action pursuant to the provisions of the Georgia Habeas Corpus Act of 1967, Georgia Laws 1967, page 835.' Appellee filed a general demurrer and motion to dismiss the petition. After hearing argument on the demurrer and motion, the court sustained the demurrer and dismissed the petition. The appeal is from this order.

1. Section 3 of the Habeas Corpus Act of 1967 (Ga.L.1967, pp. 835, 837; Code Ann. § 50-127(2)) provides that a petition for habeas corpus shall have attached thereto affidavits records or other evidence supporting its allegations or shall state why the same are not attached. A petition for habeas corpus must set out the facts upon which it is predicated, as distinguished from allegations of mere conclusions, and these facts should be specific and not merely general. 24 C.J.S. Criminal Law § 1606(28a), p. 783. A mere allegation that one has been denied constitutional guarantees, without setting forth facts substantiating a violation of such rights is not a sufficient reason for setting aside a sentence on habeas corpus. Barbee v. Warden, 220 Md. 647, 151 A.2d 167. See also Thornton v. Warden, 241 Md. 715, 216 A.2d 894; Ellis v. Warden, 241 Md. 176, 215 A.2d 836 and Matthews v. Warden, 223 Md. 649, 162 A.2d 452. The appellant's allegations that he was indicted by a grand jury from which members of the Negro race had been systematically excluded or disproportionately included were mere conclusions. Appellant sets forth no...