Walker v. State

• Decision Date: 14 October 1942
• Docket Number: 14287.
• Citation: 22 S.E.2d 462,194 Ga. 727
• Parties: WALKER v. STATE.
• Court: Georgia Supreme Court

22 S.E.2d 462

194 Ga. 727

WALKER v. STATE.

No. 14287.

Supreme Court of Georgia

October 14, 1942

Syllabus by the Court.

1. The provision of the constitution (art. 1, sec. 1, par. 5 Code, § 2-105) that 'Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel,' guarantees such person who is unable to employ counsel the right to have counsel appointed for him by the court; and such provision entitles an accused who is able to employ counsel a reasonable opportunity to procure counsel of his own selection.

2. Where a defendant charged with crime is detained in custody and is in effect, by restrictions imposed upon his communications with others, deprived of opportunity to procure counsel of his own choice, and is forced to trial with counsel appointed by the court, and his motion to postpone the trial so as to permit him to communicate with his family in order to procure counsel is overruled, the provision of the constitution and of the Code, § 27-403, are violated. It was error to overrule a motion for new trial based upon this ground.

Thos. A. Jacobs, Jr., of Macon, for plaintiff in error.

Chas H. Garrett, Sol. Gen., of Macon, Ellis G. Arnall, Atty. Gen., and Emil J. Clower, Asst. Atty. Gen., for defendant in error.

REID Chief Justice.

The State charged that the offense of rape was committed on the person of Miss Maud Hudson, a white woman, in Jones County, on December 21, 1941, by Robert Walker. The record shows that on that date in the afternoon Miss Hudson, who was a cripple fifty-four years of age, was alone at the home of her sister, where she lived, when a negro, later identified by her as the defendant Walker, came to the house, overpowered her, and committed this offense. She fell into a state of unconsciousness. Some time later her relatives returned to the house and reported the occurrence to the sheriff, who with his son went in search of the negro then unknown but described by her. They soon met two negroes in the road, one of them being Walker. Walker had a pistol in his pocket, and upon his alleged refusal to surrender it the sheriff shot him in the arm and placed him under arrest. The pistol was identified as recently stolen from the home occupied by Miss Hudson. Walker was immediately taken to Macon, and there confined in the jail of Bibb County. Three or four days after the alleged crime the judge of the superior court of Jones County, without Walker's knowledge and without communicating with him, appointed three members of the bar of that county to represent him. On January 5, 1942, the grand jury of Jones County indicted Walker for the offense. On the same day, while he was detained in Bibb County, and without his knowledge, on the petition of appointed counsel, assented to by the solicitor-general, the judge of the superior court of Jones County entered an order changing the venue of the case, and ordering it transferred to Bibb County (in another circuit) for trial. This was done upon representation in the petition, evidence of which was given by the sheriff, that there was danger of mob violence if the trial should be held in Jones County, and that an impartial jury could not be secured in the county.

The record is not exactly clear just when, but some time afterward two of the three lawyers appointed as his counsel went to Macon and conferred briefly with Walker, telling him they had been appointed by the court to represent him. Very little appears in the record as to what occurred or was discussed in this conference, except that they discussed who might be sued as witnesses. The lawyers did not see him again until the day before his trial, which occurred on January 15, 1942, nor had they seen any of his people. During his confinement the jailor was under instructions to allow no one from the outside to see him except upon order of the sheriff of Jones County or of the judge of the superior court of that county. The defendant was told of these instructions and was advised that except upon these conditions he would not be allowed to see any one. Some negroes, not definitely identified but apparently his relatives, applied at the jail to see him, and were denied this permission. Certain relatives (it is not clear whether they were the ones who went to the jail) applied to the sheriff of Jones County for permission to see him, and according to his affidavit: 'Deponent denied the request, and stated to the relatives of Robert Walker that they would not be allowed to see him.' They did not specify what they wanted to see him about, nor had he before the day his case was called actually requested any one to communicate with any lawyer. Walker stated that he first gained knowledge of when and where he was to be tried from another prisoner, who had seen notice of it in a newspaper. Counsel who had been appointed conferred again with him on the day before his trial. The nature of this conference is not clearly shown, nor is it clear just when he first advised these lawyers of his wish to employ other counsel. On the morning his case was called, the following discussion occurred:

'The Court: Well, what say you, are you ready or not ready?

'Mr. Anderson (of counsel for defendant): We are ready. The defendant says he is not ready, as he has not had time to procure counsel.

'The Court: Are you ready or not ready, Walker?

'The defendant, Robert Walker: I am not ready. He has not given me a chance to get a lawyer since I have been in jail since before Christmas.

'The Court: Have you asked anybody to get you a lawyer?

'Defendant: I have not seen anybody. He has not let anybody come up there.

'Mr. Guy Anderson (of counsel for defendant): I am the lawyer that went to see him. I talked to him about the case, and told him what I was there for.

'The Court: About being appointed, and he made no objections at the time?

'Mr. Anderson: No sir.

'The Court: Did he ask you to get other counsel?

'Mr. Anderson: 'No, sir.

'Mr. Jackson (of counsel for defendant): Ask him if any official asked him if he had sufficient funds to employ counsel, and whether or not I asked him.

'The Court: (To defendant) Have you got any money to employ counsel with?

'Defendant: No, sir, they have not asked me anything.

'The Court: Did anybody ask you that?

'Defendant: No, sir.

'The Court: Did you request the court to appoint you counsel?

'Defendant: No, sir.

'The Court: How long have you been in jail?

'Defendant: Going on four weeks.

'The Court: Did you know the charge against you?

'The defendant: Yes, sir, he told me.

'The Court: Did the jailor tell you that?

'Defendant: Yes, sir.

'The Court: Did the jailor, did you tell the jailor you wanted to get a lawyer?

'The defendant: No, sir.

'The Court: Do you have any objection to your lawyers?

'Defendant: No, sir, but I wanted my people to get me a lawyer.' (He later stated that he wanted his people to get him a lawyer in Bibb County, the appointed counsel being from Jones County.)

'Mr. Anderson, of counsel for the defendant: About ten days ago we came to see him, and told him the judge had appointed us to defend him, and we said, 'Is that all right with you? and he said yes, and I proceeded to talk to him about his case. All three of us were with him, and conferred with him about the trial, * * *

'The Court: I will overrule the motion for continuance. I think the stenographer should add that counsel appointed has a good reputation, and are good lawyers.'

The trial proceeded, and a verdict of guilty was returned the same day. Counsel who had been appointed and who represented him in the trial filed a motion for new trial, and were intending to file an amendment to the motion, when relatives of the defendant employed present counsel, who has continued to act.

The motion for new trial, among other grounds, assigns error on the refusal of the judge to postpone the trial until the defendant could communicate with his family in an effort to procure counsel of his own choice. After reciting substantially what has been set out above, it is stated in this ground: 'Movant alleges that while he was not held strictly incommunicado, that his people were denied the right to see him before his trial, and orders were issued that no one be allowed to see movant, except by permission of the sheriff of Jones County, which county was the venue of the alleged offense. Movant therefore had no opportunity to discuss with his people the employment of chosen counsel, or to arrange for compensation for such counsel so selected. Movant avers the refusal of the court to allow time for movant to obtain counsel of his choice denied him the privilege and benefit of counsel, and violated the provision of the constitution of the United States and of the State of Georgia, and denied movant the equal protection of the law, and deprived movant of life, liberty, and property, without due process of law; and the effective assistance of counsel guaranteed by the sixth amendment of the constitution of the United States was denied him.'

There is no challenge as to the fidelity, skill, or competency of counsel who did represent the defendant, although it is contended they failed to make certain points and failed to object to the admission of certain testimony. The contention is that he was deprived of opportunity to employ counsel of his own choice. In a countershowing it is contended by the State that if he, while in jail, had asked the sheriff or jailor to communicate with a lawyer they would have readily done so. There is much detailed recital in the record as to what occurred; but on the main question to be considered the foregoing is a fair statement of the record together with some references to be...