Sims v. Balkcom, 22438

• Decision Date: 07 May 1964
• Docket Number: No. 22438,22438
• Citation: 136 S.E.2d 766,220 Ga. 7
• Parties: Isaac SIMS, Jr. v. R. P. BALKCOM, Jr., Warden.
• Court: Georgia Supreme Court

Page 766

136 S.E.2d 766

220 Ga. 7

Isaac SIMS, Jr. v. R. P. BALKCOM, Jr., Warden.

No. 22438.

Supreme Court of Georgia.

May 7, 1964.

Syllabus by the Court

1. Habeas corpus is never a remedy for the correction of errors but is a remedy to set aside a judgment that is void.

2. The zenith of human attributes is the virtue, purity and sanctity of woman. The imposition of the penalty of death upon one who rapes a woman is not 'cruel and unusual' punishment which is inhibited by the 8th Amendment (Code § 1-808) of the Constitution of the United States or Art. I, Sec. I, Par. IX of the State Constitution (Code Ann. § 2-109; Const. of 1945).

3. While conduct of appointed counsel in the exercise of his judgment in not challenging a jury or cross examining a State's witness can not be held by this court to show either incompetence or unfaithfulness; yet where court appointed counsel files no motion for a new trial after a sentence of death has been imposed and withdraws from the case without notice to the accused, and the court appoints no counsel for this purpose in a case where the accused is admittedly indigent, illiterate and ignorant to the point of incompetency, a violation of both the State and United States constitutional guaranties of the benefit of counsel is shown, and the conviction and sentence are void, and it was error in a habeas corpus proceeding where these facts were shown to remand the accused to the custody of the State Warden.

This is a habeas corpus case in which it is alleged that the prisoner is an indigent and illiterate negro who was not properly represented by counsel at any stage of the case, was not advised of his constitutional rights in violation of the due process and equal protection clauses of the State and Federal Constitutions in that he was not indicated by a grand jury or tried by a petit jury legally composed, that he at no time waived or authorized the waiver of any of his constitutional rights to be tried by a fair and impartial jury, and the verdict and sentence to die by electrocution are in violation of the 14th Amendment and the State Constitution in that it constitutes cruel and inhuman treatment because of the severity of the sentence disproportionate to the offense charged in that life was neither taken nor endangered. By amendment the statute (Code Ann. § 26-1302; Ga.L.1960, p. 266) under which he was sentenced to death is likewise attacked as being unconstitutional in violation of the 'cruel and unusual punishments' clauses of the State Constitution and the 6th, 8th and 14th Amendments of the Constitution of the United States in that the statute fails to set out any standards by which the jury can be guided in its determination of the sentence to be imposed, alleging that (a) the State of Georgia has executed for rape 58 Negro persons and only 3 White persons since 1930; (b) execution for rape violates evolving standards of decency that mark the progress of a maturing society which are more or less accepted universally; and (c) in the instant case the imposition of the death penalty is erratic and arbitrary, he being the only known person sentenced to death for rape in this county since 1913, and only two other persons having been sentenced to death, both for murder, which sentences were later commuted to life imprisonment. He further alleges that the admission of a confession signed by him violated his right of due process under the 14th Amendment since it was obtained by threats and force at a time when he was unrepresented by counsel, he being illiterate, and after he had been beaten and threatened with death if he denied committing the crime.

Evidence was introduced at the hearing in regard to (1) the selection of the names of jurors from the tax digests of Charlton County; (2) the illiteracy, ignorance and indigency of the prisoner; (3) exhibits and documents with reference to capital crimes and punishment which were not allowed in evidence; and (4) testimony and documents submitted to prove the lack of counsel at various stages of the case, including the holding of the first and second committal hearings, the last time the prisoner saw his appointed counsel, the failure by counsel to file a motion for new trial, and the reasons why defense counsel failed to raise certain questions in defense during the trial and prior to trial, and particularly as to whether or not the prisoner had been beaten in a doctor's office, including a review of questions asked of the doctor which included the doctor's testimony in regard to the victim as to bruises on her chest, around her breasts, shoulders, neck and eyes, and the transcript of the committal hearing as to his testimony with reference to his examination of the victim within two hours after the alleged rape showing her hysteria and extreme nervous shock in which she stated she had been raped, the condition in which he found her private parts showing that her hymen had been stretched to allow entrance to the vagina, blood stains present around the entire area, with tears in the mucuous membranes, and that she had been menstruating and was still menstruating, and the condition of her clothing and body with mud on her legs and thighs.

After the hearing, the court remanded the custody of the prisoner back to the warden, and the exception here is to that judgment.

D. L. Hollowell, Howard Moore, Jr., Horace T. Ward, William H. Alexander, Atlanta, Jack Greenberg, James M. Nabrit, New York City, for plaintiff in error.

Eugene Cook, Atty. Gen., Albert Sidney Johnson, Asst. Atty. Gen., Atlanta, B. Daniel Dubberly, Jr., Deputy Asst. Atty. Gen., Glennville, Dewey Hayes, Solicitor General, Douglas, for defendant in error.

DUCKWORTH, Chief Justice.

1. The writ of habeas corpus is never a substitute for a review to correct mere errors of law. McKay v. Balkcom, 203 Ga. 790, 48 S.E.2d 453, and cases cited therein. It is an available remedy to attack a void judgment. Fleming v. Lowry, 173 Ga. 894, 162 S.E. 144; Henson v. Scoggins, 203 Ga. 540, 47 S.E.2d 643; Coates v. Balkcom, 216 Ga. 564, 118 S.E.2d 376. Therefore, we will not review in this proceeding alleged errors in holding one commitment hearing when the accused was without counsel, although his appointed counsel requested and obtained another commitment hearing at which the accused had counsel. Nor would alleged discrimination in making up the jury boxes in the absence of a timely challenge to the jury be reviewable (Cornelious v. State, 193 Ga. 25, 31, 17 S.E.2d 156; Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217, remanded 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, adhered to 211 Ga. 763, 88 S.E.2d 376, cert. denied, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828; Cobb v. State, 218 Ga. 10, 126 S.E.2d 231) here or elsewhere, provided the accused was represented by counsel when such challenge must, under the law, be made. Whether he had such counsel will be decided in Division 3 of this opinion. Thus far we find no error in the judgment remanding the prisoner to the custody of the warden.

2. The sentence of death by electrocution for rape, since the victim was not slain, is alleged to be a violation of the State and Federal Constitutions which forbid cruel and unusual punishment. The 8th Amendment (Code § 1-808) of the Federal Constitution and Art. I, Sec. I, Par. IX of our State Constitution (Code Ann. § 2-109; Const. of 1945) contain the identical words, 'cruel and unusual punishments,' and expressly forbid their infliction. We believe this court fairly and correctly construed the meaning of that constitutional provision (Code § 1-808) in Whitten v. State, 47 Ga. 297, 301. It was there said: 'So long as they [the legislature] do not provide cruel and unusual punishments such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.' To the same effect see Wilkerson v. Utah, 99 U.S. 130, 135, 25 L.Ed. 345; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835; Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422.

No determination of this question is either wise or humane if it fails to take full account of the major place in civilizen society of woman. She is the mother of the human race, the bedrock of civilization; her purity and virtue are the most priceles attributes of human kind. The infinite instances where she has resisted even unto death the bestial assaults of brutes who were trying to rape her are eloquent and indisputable proof of the inhuman agonies she endures when raped. She has chosen death instead of rape. How can a mere mortal man say the crime of rape upon her was less than death. Man is the only member of the animal family of which we have any knowledge that is bestial enough to forcibly rape a female. Even a cur dog is too humane to do such an outrageous injury to the female.

We are not dealing with the wisdom of capital punishment in any case. That must be left by the judiciary to the legislative department. But any man, who can never know the haunting torment of a pure woman after a brutal man has forcibly raped her, who would arbitrarily classify that crime below murder, would reveal a callous appraisal of the true value of woman's virtue.

We reject this attack upon the sentence in full confidence that in so doing we permit the sovereign State, which is actually all the people thereof, to guard and protect the mothers of mankind, the cornerstone of civilized society, and the zenith of God's creation, against a crime more horrible than death, which is the focible sexual invasion of her body, the temple of her soul, thereby soiling for life her purity, the most precious attribute of all mankind. In such cases the law clothes the accused with full protection of his legal rights to a fair trial with all defenses,...