Wilcoxon v. Aldredge

• Citation: 19 S.E.2d 499,193 Ga. 661
• Decision Date: 17 March 1942
• Docket Number: 13943.
• Parties: WILCOXON v. ALDREDGE, Sheriff.
• Court: Georgia Supreme Court

19 S.E.2d 499

193 Ga. 661

WILCOXON v. ALDREDGE, Sheriff.

No. 13943.

Supreme Court of Georgia

March 17, 1942

Syllabus by the Court.

After conviction of a criminal offense, the defendant sought his release by the writ of habeas corpus, alleging that attorneys appointed to defend him were so ignorant, inexperienced, or grossly lacking in appreciation of their responsibility as to amount to virtually no representation, and that consequently he was deprived of the benefit of counsel as guaranteed by the State and Federal constitutions. After the introduction of evidence by applicant and respondent, the judge remanded the applicant to custody, and he excepted. Held, that the evidence introduced by the parties respectively, without objection, demanded the finding that the applicant was not denied the benefit of counsel, as contended, and that the evidence rejected would not have authorized a different result. The court did not err in remanding the applicant.

Lewis Wilcoxon, convicted in the superior court of Cobb County of the crime of rape, was sentenced by Judge Hawkins to be executed. Wilcoxon was confined in the Fulton County jail awaiting the date appointed for execution. While so confined a writ of habeas corpus presented by attorneys other than those who represented him on the trial was issued on petition of Wilcoxon against the sheriff of Fulton County, by Judge Pomeroy, one of the judges of the superior court of that county. One of the alleged complaints was that two attorneys at law appointed by Judge Hawkins to represent petitioner on his trial were either so ignorant, inexperienced, or grossly lacking in appreciation of their responsibility as to amount to virtually no representation, and that accordingly petitioner was not given the full benefit of his right to counsel as required by the State constitution, and that he was deprived of the due process of law and the equal protection of the law, as required by the Federal constitution. At the appointed time the respondent produced the prisoner, and made answer in which the allegations of fact relied on as basis for discharge were denied. On examination of the petition as amended, Judge Humphries of the superior court of Fulton County, then presiding, issued an order remanding the prisoner to the custody of the officer for the stated reason that it appears upon the face of the petition 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.' On review of that decision the Supreme Court ruled that Judge Humphries had jurisdiction to entertain the petition for habeas corpus, but that in remanding the petitioner to custody of the officer he did not pass on petitioner's contention that the alleged facts were sufficient to support the general allegation of deprivation of the benefit of counsel. Accordingly, in pursuance of the power of direction possessed by the Supreme Court, a vreversal of the ruling quoted was ordered, with direction that the judge proceed to adjudicate the charge mentioned as not having been passed upon. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873. At the trial which ensued the petitioner offered in evidence a designated page of a certified copy of the 1930 United States census with respect to Cobb County, showing the number of negroes and the percentage of literacy, and certain affidavits. The evidence was offered solely for the purpose of showing that the attorneys failed, as it was their alleged duty to do, to raise the question that the grand jury and the traverse jury were improperly organized, because negroes (the petitioner being of that race) were systematically excluded from such juries and the jury boxes. The court rejected this and other evidence offered for the same purpose, on the ground of irrelevancy. At the time all such evidence was offered, it was stated by counsel that its only purpose was to show whether the accused 'was properly represented or not' and 'whether the counsel who represented him were capable lawyers,' it being insisted that the failure of the attorneys to raise the stated question was 'incidentally relevant' to establish the negative of these inquiries. Other evidence was introduced by both sides, without objection, including a sworn transcript of the evidence adduced on the trial, the same being in question and answer form, and showing lengthy cross-examination of the State's witnesses by the appointed counsel. At the conclusion of the evidence the judge found against the applicant, and remanded him to custody. The exception is to that judgment. In the judgment it was stated: 'The court finds that the applicant was not denied the benefit of counsel, or other due process, as claimed, but that on the other hand the trial judge was careful and considerate in the selection of an able and experienced lawyer to assist the young lawyer appointed to represent the defendant on the trial of the case, and that the defendant was duly convicted of a capital offense, and is now in legal custody.'

William S. Shelfer and Randolph W. Thrower, both of Atlanta, for plaintiff in error.

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

ATKINSON Presiding Justice.

In Fambles v. State, 97 Ga. 625, 25 S.E. 365, 366, being an exception to a judgment overruling an extraordinary motion for a new trial in a capital case, Chief Justice Simmons speaking for the court said: 'Attorneys are officers of court, and such officers are presumed to do as the law and their duty require them. When an attorney is appointed by the court to defend a person accused of crime who is unable to employ counsel, it is his duty to do so, and it is to be presumed that he will discharge his full duty in the premises. It is also to be presumed that the court, in appointing counsel for this purpose, will appoint attorneys who have sufficient skill and learning to defend the accused properly. * * * Attorneys are generally men of upright character. In order to be admitted to practice, they are required to satisfy the court that they are of good moral character, as well as that they have the requisite learning. * * * We think that, before a court should grant a new trial upon the ground that counsel have failed to do their duty in this respect, there should be strong and convincing proof to overcome the presumption to the contrary. The evidence presented to the trial judge in support of this motion fails to show that the counsel representing the accused neglected any duty imposed upon them. From our reading of the record, we think they might properly have concluded that there was no sufficient ground for a new trial, and, where this is so, it is not the duty of counsel to move for a new trial. Why should counsel obstruct the administration of justice, and occupy the time of the courts with such motions, when there is no reason for supposing that a new trial will be granted?'

In Delk v. State, 99 Ga. 667, 26 S.E. 752, on exception to a judgment refusing a new trial in a capital case, it was held: 'A person being tried for the commission of a crime receives 'the privilege and benefit of counsel,' within the meaning of the fifth paragraph of the 'Bill of Rights' (Code, § 4997, [Code of 1933, § 2-105]) whenever, being himself unwilling or unable from poverty or other cause, to procure counsel of his own choice, the court assigns to his defense counsel from members of the legal profession who may be present at the time of the...