Opinion
14212, 14213.
SEPTEMBER 18, 1942.
Habeas corpus. Before Judge Grice. Tattnall superior court. April 18, 30, 1942.
Pierce Brothers, for plaintiff. Ellis G. Arnall, attorney-general, E. L. Reagan, assistant attorney-general, W. H. Lanier, solicitor-general, and M. C. Barwick, for defendant.
Denial of applications for release on habeas corpus, after conviction of murder, was proper.
Nos. 14212, 14213. SEPTEMBER 18, 1942.
Wade Holley was found guilty of murder, and was sentenced to death. A new trial was refused, and that judgment was affirmed on the general and special grounds. Holley v. State, 191 Ga. 804 ( 14 S.E.2d 103). An appeal to the United States Supreme Court was dismissed. U.S. ( 62 Sup. Ct. 73, 86 L. ed. ). The trial judge being confined at home with injuries, the Governor, on March 7, 1942, designated another superior-court judge to preside for the purpose of resentencing the defendant by fixing another date of execution. This order was filed in the clerk's office on March 11, 1942. On March 9, 1942, the designated judge entered an order for the death sentence to be executed on March 20, 1942. The defendant then filed an application for habeas corpus on grounds which the judge hearing the application summarized as follows:
"1. That the Governor had no authority to assign Judge Evans, who fixed the new date for the electrocution of the defendant, to leave the Ogeechee Circuit and preside in the Middle Circuit.
"2. That even if the Governor had this authority, his order of assignment had not reached Jefferson County and been entered on the minutes of the superior court there prior to the time Judge Evans presided there in this matter.
"3. That court was not in session, and therefore no lawful judgment or act could be done since court had adjourned.
"4. That the form of sentence signed [by the designated judge] was insufficient in law.
"5. That the defendant was denied the benefit of counsel in his trial, as guaranteed to him under the constitution.
"6. That defendant's wife, alleged to be an eye-witness of the killing, was not permitted to testify in his behalf.
"7. That defendant himself was not permitted to be sworn and testify under oath as to the facts of the killing."
On April 23, 1942, the judge denied the writ, and held that the first four grounds were moot, because the date fixed for electrocution had passed; and also that such grounds were without merit. He further held, that ground 5 was without merit, since the defendant had been ably represented by experienced attorneys employed by the family of the defendant; that as to the grounds relating to the inability of the wife to testify, and the inability of the defendant himself to testify under oath, any such rights had been waived; and that the judge hearing the habeas corpus could not act as a reviewing court for the correction of the alleged errors. The defendant excepted to these rulings, on grounds which specifically state his contentions.
Pending a decision on the defendant's application for habeas corpus, Mrs. L. V. Holley, his wife, filed her petition for leave to intervene in the application, on the grounds, that she as his wife had "an economical, personal, and financial interest in [his] life;" that he was "her mainstay and support," of which she was about to be deprived; that she had been banned and excluded as a witness in his trial, in violation of the State and Federal constitutions, by virtue of the Code, § 38-1604, providing that husband and wife are not "competent or compellable to give evidence in any criminal proceeding for or against each other," except as stated; that she had been an eye-witness to the homicide, and had seen the deceased assaulting the defendant with a "piece of iron bar 2 1/2 feet long and 1 1/2 inches wide, when the fatal shot was fired;" and that her husband had been denied the use of this testimony. The judge denied her petition for leave to intervene. While the record discloses that she was present in the court-room during the trial of the defendant for murder, neither the petition of the wife nor the petition of the husband shows that such testimony by the wife or any testimony by the husband under oath was tendered at such trial, or that either of them then attempted to so testify and was prevented from doing so by any adverse ruling.
1. As the judge hearing the application for habeas corpus by one sentenced to the death penalty correctly held, the questions raised by the attack on an order fixing a new date of execution, after the original judgment had been affirmed ( Holley v. State, supra), became moot because that date had passed before the habeas-corpus hearing; and those questions will not be considered by this court, since any invalidity in such order of resentence "would in no event have entitled [defendant] to a discharge on his petition for habeas corpus, but only to a remand to the trial court for resentence" by fixing a new date of execution ( Smith v. Henderson, 190 Ga. 886 (2), 10 S.E.2d 921; 16 C. J. 1296, § 3062), which will be necessary irrespective of the merits of any such questions.
2. While an actual denial of the benefit of counsel will afford a ground for issuance of the writ of habeas corpus ( Wilcoxon v. Aldredge, 192 Ga. 634, 638, 15 S.E.2d 873, and cit.; Elam v. Rowland, 194 Ga. 58, 20 S.E.2d 572, 573), and "if appointed attorneys are so ignorant, negligent, or unfaithful that the accused was virtually unrepresented, or did not in any real or substantial sense have the aid of counsel, he would be deprived of a fundamental constitutional right, and if convicted might successfully complain that he had been denied due process of law" ( Williams v. State, 192 Ga. 247, 257, 15 S.E.2d 219; Wilcoxon v. Aldredge, supra), there is no merit in that ground. The record shows that the two attorneys who represented the defendant in his trial for murder were experienced, capable members of the bar, employed by the family of the defendant. Their contentions, supported by affidavits, that they were precluded or embarrassed as to proper defenses by adverse rulings and language by the trial judge and by the disorder and hostile attitude of the crowd in the court-house, were contradicted by many counter-affidavits, by the judge presiding at the trial, and by the convicting jurors, the clerk and other officers of the court, and attorneys in attendance or familiar with the ability and experience of counsel. Under this evidence, the judge hearing the habeas corpus was authorized to find against that ground. Wilcoxon v. Aldredge, 193 Ga. 661 ( 19 S.E.2d 499). Furthermore, it appears that on the writ of error from the refusal of a new trial the defendant was represented, not only by his original counsel, but by additional attorneys including those now representing him in his petition for habeas corpus. See Holley v. State, supra.
3. "It is the firmly established general rule that the writ of habeas corpus can not be used as a substitute for a writ of error or other remedial procedure to correct errors of law, of which the defendant has had opportunity to avail himself." White v. Hornsby, 191 Ga. 462 ( 12 S.E.2d 875). There is no merit in the attack by the defendant upon the validity of his conviction, on the ground that his wife, an alleged eye-witness of the homicide, would have testified in the trial that he killed the deceased while defending himself from an iron bar, but that under the Code, § 38-1604, she was precluded as a wife from so testifying, and that under § 38-415 he was precluded from testifying under oath, and permitted only to make an unsworn statement to the jury, and that on both grounds he was denied the rights guaranteed by the 14th amendment to the Federal constitution, and by the State constitution. This is true, since it appears from evidence for the defendant at the habeas-corpus hearing that the wife was present in the court-room at the homicide trial, and there is nothing in the record to indicate any tender of her testimony or of sworn testimony by the defendant, so as to show a denial of the benefits of either of the alleged rights, irrespective of their merit. As to the incompetency of the wife to so testify, and the constitutionality of Code § 38-1604, so declaring, see Melton v. State, 180 Ga. 104 ( 178 S.E. 447).
4. The allegation of the petition that counsel did not present the wife to testify, because of "their ignorance or overwhelming fear," is not supported by the present record or the record in the previous trial ( 191 Ga. 804, supra), which shows the numerous questions raised by counsel at that trial. The allegation is further contradicted by testimony for the State at the habeas-corpus hearing, as above stated, from which the judge was authorized to find adversely to the petitioner.
5. For the reasons stated in the two paragraphs next preceding, the judge did not err in denying the wife's petition to intervene in the husband's application for habeas corpus, on the ground that she has an interest in his life, of which she is about to be deprived, and that she was precluded, under the Code, from testifying in his behalf at the homicide trial, since, irrespective of any question as to her right to intervene, the contention as to her right to testify was also embodied in the husband's petition for habeas corpus, and there is nothing in either petition to show that her testimony was tendered and its admission was refused.
6. Under the preceding rulings, the court properly denied the application of the defendant for his release on habeas corpus.
Judgment affirmed in both cases. All the Justices concur.