Opinion
25924.
DECIDED MAY 20, 1971.
Habeas corpus. Tattnall Superior Court. Before Judge Caswell.
James M. Kitchens, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.
In Kitchens v. Smith, 226 Ga. 667 ( 177 S.E.2d 87), this court held that the appellant at the habeas corpus hearing did not prove his contention that he was without counsel due to his indigency at the time of his conviction of robbery, and affirmed the judgment of the habeas corpus court remanding him to the custody of the warden for service of his sentence imposed in 1944, which he had not completed because of his escape from prison.
The Supreme Court of the United States reversed this decision, holding that the evidence on the habeas corpus hearing proved the appellant's contention. Kitchens v. Smith (No. 6131, decided April 5, 1971), 402 U.S. ( 91 SC, 28 L.Ed.2d 519).
In obedience to the mandate of the Supreme Court of the United States, our former judgment in the case is vacated, and the judgment of the lower court is reversed. Direction is given that the appellant be returned to the Superior Court of Fulton County for retrial of the charge against him, and that he be furnished counsel for his defense.
Judgment reversed with direction. All the Justices concur.