Wilcoxon v. Aldredge

• Decision Date: 09 July 1941
• Docket Number: 13703.
• Parties: WILCOXON v. ALDREDGE, Sheriff.
• Court: Georgia Supreme Court

15 S.E.2d 873

192 Ga. 634

WILCOXON v. ALDREDGE, Sheriff.

No. 13703.

Supreme Court of Georgia

July 9, 1941

Syllabus by the Court.

1. A judge of the superior court has jurisdiction to entertain a petition for habeas corpus on behalf of any person detained in his circuit, even though such person may have been convicted in the superior court of another circuit and is detained in the circuit in which the petition is brought merely for safe-keeping until the time designated for the carrying out of the sentence of death passed upon him.

2. A complaint that colored persons were systematically and arbitrarily excluded from the jury list in the county in which the applicant, a person of color, was convicted, does not present a good ground for habeas corpus, for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived.

3. The same is true in respect to a complaint that a confession was not admissible in evidence because it was in fact obtained by duress.

4. A complaint that the defendant was not given the benefit of counsel, if sustained, presents a good ground for issuance of the writ of habeas corpus.

5. In the present case when the applicant was brought before the trial judge he remanded him to custody, on the ground that none of the complaints were appropriate to a petition for habeas corpus, but simply called for a review of alleged errors in the trial. This was erroneous in view of the charge that the applicant had not been given the benefit of counsel. In such case this court will not determine whether facts set forth in petition are sufficient to support general allegations that the applicant was not given the benefit of counsel, but will reverse the judgment and remand the case for further proceedings in the trial court.

Wm S. Shelfer, E. P. Tuttle, and Randolph W. Thrower, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., and Durwood T. Pye, both of Atlanta for defendant in error.

REID Chief Justice.

Lewis Wilcoxon, colored, was convicted of rape. There was no recommendation of mercy, and in accordance with the Code, § 26-1302, he was given the penalty of death. The sentence provided that until the time for his execution he be confined in the common jail of Fulton County. Pending his incarceration there he presented to the judge of the superior court of that county a petition for habeas corpus. On the return day of the writ the sheriff produced the applicant before the judge. One of the attorneys representing the applicant moved for a continuance because of illness of himself and associate counsel. The court overruled the motion, and remanded the applicant to custody. This order was in part as follows: 'On consideration of the allegations of the petition itself, it is adjudged that the prisoner is in legal custody, and that this court is without jurisdiction or authority to review the trial in the superior court of Cobb County.'

1. The inherent merit of the motion for continuance is undisputed. See Code, § 81-1413. It was overruled solely on the idea that the allegations of the petition for habeas corpus disclosed legal detention, and that a continuance could be of no benefit to the applicant. We are committed to the proposition that if the grounds of a petition for habeas corpus are insufficient in law to show that the detention is illegal, it may be dismissed on demurrer or motion to quash. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305(3), 43 S.E. 780, 61 L.R.A. 739; Smith v. Milton, 149 Ga. 28, 98 S.E. 607; Coleman v. Grimes, 154 Ga. 852, 115 S.E. 641; McDowell v. Gould, 166 Ga. 670, 144 S.E. 206; Brown v. Harden, 150 Ga. 99, 102 S.E. 864; Kinman v. Clark, 185 Ga. 328, 195 S.E. 166; Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469. There was no demurrer or motion to quash here, but there is no suggestion that the judge would not have the power in such proceeding to test the sufficiency of the petition, ex mero motu. See Moody v. Davis, 10 Ga. 403; Goodrum v. State, 60 Ga. 509; Shore v. Brown, 19 Ga.App. 476, 91 S.E. 909; Kelly v. Strouse & Bros., 116 Ga. 872, 893, 43 S.E. 280. If the judge's conclusion be found correct, which was substantially that the petition for habeas corpus disclosed no ground for issuance of the writ, there could be no reversible error in refusing to grant the continuance, though it was otherwise meritorious. Jim v. State, 15 Ga. 535; Hodges v. State, 95 Ga. 497, 20 S.E. 272; Tillinghast v. Nourse, 14 Ga. 641; Brumby v. Barnard, 60 Ga. 292; Mayor &c. of Buford v. Medley, 58 Ga.App. 48, 197 S.E. 494. We may then pass on to the determination of the correctness of the ruling by the judge in respect to the petition for habeas corpus.

In the trial judge's order and opinion rendered in connection therewith are references to the fact that the applicant was convicted in Cobb superior court, and was incarcerated in Fulton County for safekeeping pending the time for the execution of his sentence; and there is some suggestion that a judge of the superior court of Fulton County had no jurisdiction to entertain the petition, for the reason that it would amount to an intrusion upon the jurisdiction of Cobb superior court of the defendant until its sentence was carried out. This is, we believe, untenable. A judge of the superior court has full jurisdiction to entertain a petition for habeas corpus for any person detained within his circuit, even though the detention be under a judgment of a superior court of another circuit. Simmons v. Georgia Iron & Coal Co., supra; McBride v. Graeber, 16 Ga.App. 240, 85 S.E. 86; Day v. Smith, 172 Ga. 467, 157 S.E. 639. The applicant was detained in Fulton County, and as we view it the only judge of the superior court that in fact had jurisdiction to entertain his petition was a judge of that county. It is of course fundamental that a writ of habeas corpus, sought by one convicted of crime, who seeks thereby to obtain his liberty, can be maintained only for defects such as render the judgment of conviction void, and cannot be made a substitute for a writ of error or other remedial procedure for the correction of errors and irregularities (Wells v. Pridgen, 154 Ga. 397, 114 S.E. 355 and cit.); and, if the petition in the present case were one of the latter character, it could not be successfully maintained either before a judge of the superior court of Fulton County or before the judge of the superior court in which the applicant was convicted. On the other hand, if it set up meritorious grounds for issuance of the writ, the judge of the superior court of Fulton County had jurisdiction to entertain it, since the applicant was detained in that county, irrespective of the fact that the judgment of conviction was rendered in the superior court of Cobb County. Our opinion is that the place of conviction has no materiality in determining the validity of the petition for habeas corpus. Of course, had it appeared that the case was still pending in Cobb superior court by virtue of a motion for a new trial or other remedial procedure undisposed of, a different question would have been presented.

2. One complaint made in the petition is that members of applicant's race were systematically and arbitrarily excluded from the jury lists of Cobb County, in violation of the 14th amendment of the Federal constitution, and art. 1, sec. 1, par. 3 of the State constitution (Code, §§ 1-815, 2-103). This does not present a ground for habeas corpus, for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so it is to be considered as waived. Phillips v. Brown, 122 Ga. 571, 50 S.E. 361; Smith v. Milton, 149 Ga. 28, 98 S.E. 607. We are of course familiar with the rulings of the Supreme Court of the United States, that 'Exclusion of all negroes from a grand jury by which a negro is indicted, or from the petit jury by which he is tried for the offense, resulting from systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, is a denial of the equal protection of the laws guaranteed to him by the Fourteenth Amendment.' Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757. See Wilson v. State, 69 Ga. 224, 236, 237; Bashlor v. Bacon, 168 Ga. 370, 147 S.E. 762. In all of those cases the point was timely made, and was not, as here, presented after conviction, by a petition for habeas corpus. The applicant had the right to require a jury, both grand and petit, duly organized in accordance with constitutional principles; but he could not either negligently or purposely stand silently by in this respect, taking the chances of an acquittal, and upon conviction seek to thus nullify his trial. It is settled that constitutional questions may be waived by failure to comply with reasonable procedural requirements. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Meyers v. Whittle, 171 Ga. 509, 156 S.E. 120. In Re Wood, 140 U.S. 278, 279, 11 S.Ct. 738, 35 L.Ed. 505, it was recognized that a failure to raise a question of the character now involved in the trial court would amount to a waiver so that habeas corpus would not lie. See Jugiro v. Brush, 140 U.S. 291, 11 S.Ct. 770, 35 L.Ed. 510; ...