Solesbee v. Balkcom

• Decision Date: 14 March 1949
• Docket Number: 16537.
• Citation: 52 S.E.2d 433,205 Ga. 122
• Parties: SOLESBEE v. BALKCOM, Warden.
• Court: Georgia Supreme Court

52 S.E.2d 433

205 Ga. 122

SOLESBEE v. BALKCOM, Warden.

No. 16537.

Supreme Court of Georgia

March 14, 1949

Rehearing Denied March 28, 1949.

Syllabus by the Court.

1. A stay of execution is not based on any inherent right of one who has been convicted and sentenced to suffer death for the offense of murder, and such person is not entitled by any provision of law in this State to any inquisition as to alleged insanity after sentence. Code, § 27-2601. Such investigation as may be made under the Code, § 27-2602, by a commission of physicians as may, in his discretion, be appointed by the Governor, arises out of a sense of public propriety and decency that one, though legally convicted and sentenced, should not suffer death during his mental incapacity to realize his situation and perhaps invoke some remedial measure in his own behalf. The failure to accord such a person a judicial hearing and notice does not deprive him of due process of law under the State and Federal Constitutions.

2. The petition for habeas corpus showing that the petitioner had been convicted and sentenced to death for murder, and that the question of his alleged insanity after conviction and sentence had been investigated by a commission of three physicians chosen by the Governor under the provisions of the Code, § 27-2602, and that he had been found sane, but alleging that he was being detained by the Warden of the State Penitentiary for execution of his sentence in violation of the due-process clauses of the State and Federal Constitutions, in that he had not been accorded a judicial determination of his alleged insanity, did not set forth a cause of action, and the trial judge did not err in sustaining the general demurrer of the respondent and in dismissing the action and remanding the petitioner to the custody of the respondent.

Statement of facts by DUCKWORTH, Chief Justice:

George W. Solesbee filed in the Superior Court of Tattnall County Georgia, on November 18, 1948, a habeas corpus petition against R. P. Balkcom, Jr., alleging the following: The petitioner is incarcerated in the State penitentiary at Reidsville, Georgia, where he has been ordered put to death by electrocution on November 20, 1948, by R. P. Balkcom, Jr. the warden of the said penitentiary, in pursuance of an order of the Honorable W. R. Smith, Judge of the Superior Courts of the Alapaha Circuit, presiding at Homerville, Clinch County, Georgia, on November 5, 1948. (It was alleged that the said order was without authority of law and in violation of named constitutional rights of the petitioner because entered during a respite granted by the Governor of the State suspending execution of a previous sentence until November 8, 1948, but it is admitted in this court that the question has become moot by reason of the fact that the sentence was not executed because of the filing of the habeas corpus proceeding and the order of the court restraining the said warden from proceeding with the execution until the further order of the court, and, accordingly, it is unnecessary to state such allegations.) It was alleged that the prisoner was insane and can not be executed, and that, since there is no provision of law whereby the question of his sanity or insanity can be judicially determined, no sentence of death can be legally imposed upon him. 'The only provision of law in the State of Georgia with reference to the manner in which one claims to have become insane subsequent to the entrance of a sentence of death is § 27-2602 of the Code of the State of Georgia which is: '27-2602. (1074 P. C.) Disposition of insane convicts. Cost of investigations.--Upon satisfactory evidence being offered to the Governor that the person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, with in his discretion, have said person examined by such expert physicians as the Governor may choose; and said physicians shall report to the Governor the result of their investigation; and the Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored, as determined by laws now in force. The cost of the investigation shall be paid by the Governor out of the contingent fund. (Acts 1903, p. 77.)'' The Code, § 27-2601, expressly prohibits anyone from having 'any inquisition or trial to determine his sanity,' the said section being as follows: 'No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity.' To execute the petitioner without any judicial proceeding whereby and wherein he would be entitled to produce evidence as to his sanity and to be represented at a hearing for that purpose by counsel would be to deprive him of his life without notice or hearing and without any opportunity to obtain an original court hearing and adjudication of his sanity or to review the finding of any doctors' conclusions with reference thereto. Application was made to the Governor under the above section [§ 27-2602?] and three physicians were appointed to examine the petitioner, and they reported him sane, but the petitioner alleges that any inquisition which the Governor might set up under this section would be a mere matter of grace, and no order 'passed as a matter of grace and not because of any provision of law would be in conflict with dueprocess clause of the Constitution of the State art. 1, § 1, par. 3, and of the fourteenth amendment of the Constitution of the United States,' and therefore void, and such has been declared to be the law in numerous instances.

It was prayed that the court grant the writ of habeas corpus requiring R. B. Balkcom Jr., Warden of the State Penitentiary at Reidville, to produce the body of the petitioner on a date and time to be fixed by the court in order to determine the legality of his incarceration and the legality of the authority under which the said warden purports to act under the said sentence, and also that the said warden be restrained from executing the petitioner until a hearing can be had on the petition.

The court entered an order granting the prayers of the petition, setting the hearing for November 27, 1948, at 11:30 a. m. at the courthouse in Ludowici, Long County, Georgia.

On the date set the warden produced the body of the petitioner and demurred to the petition on the following grounds: 1. No cause of action is set out in the petition. 2. (Involving a question which has admittedly become moot, since the time set for the execution of the petitioner in the sentence of November 5, 1948, has passed, and a new date for his execution would have to be set). 3. There is no conflict between the two Code sections referred to in the petition. The method provided by law for inquiring into the sanity of a person already under sentence of death is not in violation of the Constitution of this State or of the United States, and the method provided for does not deprive a person of his life without due process of law.

The court sustained the demurrer and dismissed the action, on the ground that the Code, § 27-2602, affords due process of law to the petitioner, which redress is shown by the petition to have been afforded him, and the petitioner was remanded to the custody of the warden.

The exception here is to that judgment.

Pierce Bros., of Augusta, for plaintiff in error.

Eugene Cook, Atty Gen., R. N. Odum, Deputy Asst. Atty. Gen., and J. R. Parham, Asst. Atty. Gen., for defendant in error.

DUCKWORTH, Chief Justice (after stating the foregoing facts).

The prisoner is shown by the petition to be under a sentence of...