Strauss v. Stynchcombe, 24764.

• Court: Georgia Supreme Court
• Writing for the Court: FRANKUM, Justice
• Citation: Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302 (Ga. 1968)
• Decision Date: 05 December 1968
• Docket Number: 24764.
• Parties: STRAUSS v. STYNCHCOMBE, Sheriff.

224 Ga. 859

165 S.E.2d 302

STRAUSS v. STYNCHCOMBE, Sheriff.

24764.

Supreme Court of Georgia.

Argued September 12, 1968.

Decided December 5, 1968.

Rehearing Denied December 19, 1968.

Harold Karp, Cunningham & Weinstein, Arthur Cunningham, Philip Weinstein, for appellant.

Lewis R. Slaton, Solicitor General, J. Walter LeCraw, J. Robert Sparks, Carter Goode, for appellee.

FRANKUM, Justice.

The appeal here is from the judgment and order of the Superior Court of Fulton County in a habeas corpus proceeding in which the court refused to discharge the applicant and remanded him to the custody of the defendant sheriff. Strauss and five other named defendants were jointly indicted by the grand jury of Fulton County on five counts charging violations of Section 11 of the Georgia Securities Act (Ga. L. 1957, pp. 134, 159; Code Ann. § 97-112). Strauss elected to sever and upon his trial was convicted on all counts and sentenced to three years' imprisonment and to pay a fine of $5,000 on each count, said prison sentences to run consecutively. Strauss appealed his conviction to the Court of Appeals, which court dismissed his appeal for failure to file the transcript of the evidence in the time required by law. See Strauss v. State, 116 Ga. App. 154 (156 SE2d 543). This court denied his application for certiorari on September 7, 1967. Apparently no attempt was made to have the judgment of this court denying his application for certiorari reviewed by the Supreme Court of the United States, although, as we shall see, a number of the enumerations of error contained in his appeal to the Court of Appeals sought to raise questions respecting alleged violations of his rights as guaranteed by the United States Constitution.

While his appeal was still pending, that is before this court had denied his application for certiorari, Strauss sought his discharge in a habeas corpus proceeding in the Superior Court of Fulton County on the sole ground that the grand jury which had indicted him was unconstitutionally composed in that Negro citizens were systematically excluded from it. That application was denied and he appealed that judgment to this court, where it was affirmed. See Strauss v. Grimes, 223 Ga. 834 (158 SE2d 404). Thereafter appellant filed the present application for habeas corpus, and upon the trial thereof the Judge of the Superior Court of Fulton County entered an order and judgment refusing to discharge him and remanding him to the custody of the appellee. That judgment is the judgment appealed from here. Appellant, in his brief, has reduced his nineteen grounds of enumerated error to seven issues which he has argued and discussed in his brief before this court. Appellee has substantially agreed with appellant as to the issues and has responded to appellant's argument by answering appellant's contentions with respect to those seven issues. We shall accordingly treat the case on the same basis and decide the issues argued by appellant and appellee in their respective briefs. The nature of those issues will sufficiently appear from the opinion.

1. By the Act approved April 18, 1967 (Ga. L. 1967, p. 835 et seq.) the General Assembly amended Title 50 of the Code by striking therefrom § 50-101 and substituting a new § 50-101, and by adding at the end of Chapter 50-1, a new section to be known as § 50-127. As amended, and insofar as is pertinent here, § 50-101 (c) provides: "Any person restrained of his liberty as a result of a sentence imposed by any state court of record may sue out a writ of habeas corpus to inquire into the legality of such restraint." Ga. L. 1967, pp. 835, 836. Section 50-127 established a new and exclusive procedure for suing out writs of habeas corpus by or on behalf of persons restrained of their liberty by virtue of a sentence imposed against them by a state court of record. Under this section jurisdiction to hear petitions for habeas corpus is vested exclusively in the superior court of the county wherein the petitioner is being detained. The portion of this section which is material to a consideration of the appellant's first issue is contained in the first subparagraph of the section as follows: "(1) Grounds for Writ. — Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted is his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia, or the laws of the State of Georgia, may institute a proceeding under this section. Rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently." Ga. L. 1967, pp. 835, 836. The provisions of this Act conferred upon the trial court and upon this court jurisdiction to entertain the questions presented by the appellant's application for habeas corpus, and we therefore pass immediately to a consideration of the merits of the appellant's other contentions. This disposes of the first two of his contentions.

2. The appellant contends in his third issue that his conviction was procured by the use of evidence obtained through an illegal search and seizure. In this connection he contends that there was an insufficient showing of probable cause in the affidavits made to obtain the two search warrants involved, and that the warrants were general warrants under which the solicitor general embarked upon a general exploratory search. He contends that this was in violation of the Fourth Amendment of the U. S. Constitution and of Article I, Sec. I, Paragraph XVI of the Georgia Constitution prohibiting unreasonable searches and seizures and forbidding the issuance of search warrants except upon probable cause and requiring that such warrants particularly describe the place or places to be searched and the persons or things to be seized. Finally, he contends in this connection that his personal papers, rather than the corporate papers described in the affidavits and warrants, were seized, and that there was no authority under Georgia law at the time the searches and seizures here in question were instituted to search and seize things of the nature seized in this case.

We have carefully examined appellant's contentions in this regard and find no merit in any of them. The initial search warrant in question was issued on September 1, 1964, pursuant to an affidavit made by an individual, who it appears was an investigator in the office of the Fulton County Solicitor General. The affidavit, which is slightly more than three legal pages in length, recites a number of facts of which the affiant says he has knowledge, either directly or through persons whom he knows to be reliable informants. In summary, these facts show that a number of money orders issued by three named money order companies and drawn on the Crown Savings Bank at Newport News, Virginia, have been returned to the purchases unpaid on account of insufficient funds on deposit therein; that due to the dealings of Crown Savings Bank with the money order companies and other named companies whose offices are located at the premises to be searched the bank has been closed by the State Banking Commission of Virginia and its affairs taken over by the Federal Deposit Insurance Corporation; that the aforesaid money order companies and other corporations named in the affidavit "are in the hands of" three named persons, one of them being the defendant here and "that all of said persons are known to affiant by reputation, and all of them have a bad reputation for fraudulent financial dealings," and that because of those facts and others stated in the affidavit affiant has probable cause to believe that the crimes of embezzlement, larceny after trust, and cheating and swindling have been committed by the three named individuals. The affidavit then asks for a search warrant to search specified premises for the "records of said corporation and said companies, consisting of all the minutes of meetings of the incorporators and/or owners, stockholders, officers, and directors, and other records reflecting ownership of stock, all ledgers, books of account, all records of bank deposits and withdrawals, all records pertaining to issuance of money orders by said corporation and said companies, its officers, agents and employees and Crown Savings Bank of Newport News, Virginia, and said Citizens Bank of Stockbridge, Henry County, Georgia, blank unissued money order forms and check writing equipment, including carbon copies of letters forwarded to other banks." The warrant issued on the same day directed the Marshal of the Civil Court of Fulton County to enter the described premises and to make a diligent search for the "various documents, records, papers, correspondence, blank unissued money order, books and records of each of the companies and corporations listed together with check writing equipment named in the foregoing affidavit," and if he should find them, to bring them before the magistrate issuing the warrant or some other judicial officer to be dealt with as the law directs.

As we understand the appellant's contentions with respect to the sufficiency of the allegations of fact set forth in the affidavits to obtain the warrants (and, while there is some difference in the two affidavits they are substantially alike, and what is said as to one would also apply to the other) he chiefly contends that the affiant showed by the very language of his affidavits that much of the information which he relied upon as showing probable cause was information not within his personal knowledge but was information furnished to him by others and that such information was therefore a mere conclusion on his part insufficient...