Opinion
14424.
MARCH 10, 1943. REHEARING DENIED MARCH 24, 1943.
Habeas corpus. Before Judge Dorsey. Fulton superior court. October 17, 1942.
Lindley W. Camp, for plaintiff in error.
H. W. McLarty and Paul Crutchfield, contra.
1. A person in custody under a sentence in a misdemeanor case is not entitled to be discharged on writ of habeas corpus, on the ground that he was denied the right to be tried by a jury, merely because the trial judge determined his case without a jury; the act governing the procedure of the court in which he was tried containing a provision that a jury trial may be had when demanded by the accused, and no demand therefor having been made.
2. No denial of the right to the benefit of counsel is shown by the failure of the court to appoint counsel, where in such a case it appears that the accused had been steadily employed for twenty-five years, had been at liberty on bond ever since his arrest three months before his arraignment, and that he was a grown man, not illiterate; it not appearing that he was unable to procure counsel or make an effort to employ one, or that he requested the court to assign him counsel.
No. 14424. MARCH 10, 1943. REHEARING DENIED MARCH 24, 1943.
Robert Cobb brought petition for habeas corpus against A. A. Clarke, warden of Fulton County Bellwood Prison Camp, alleging that Clarke was illegally restraining his liberty under pretense of an alleged sentence of the criminal court of Fulton County; that petitioner informed the court that he was not guilty; that he had no attorney, and did not waive his constitutional right to the assistance of counsel for his defense, or his constitutional right to trial by a jury, and did not join issue in the premises; that he had no attorney representing him; that he was not given the benefit of counsel for his defense, nor was he informed by the court as to such right; that he was not given a trial by a jury, in violation of his rights under article 1, paragraph 5, of the constitution of this State ("Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; . . and shall have a public and speedy trial by an impartial jury"), and article 1, paragraph 3 ("No person shall be deprived of life, liberty, or property, without due process of law"), the fifth amendment to the constitution of the United States (which contains a like provision), and also contrary to the sixth amendment to the United States constitution ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, . . and to have the assistance of counsel for his defense"); that the court because of the procedure had and taken as aforesaid had no jurisdiction, and that the sentence of twelve months given him was null and void. But nowhere in his petition does he aver that he was not in fact guilty of the offense charged.
The respondent answered, that when petitioner came before the bar he was asked by the presiding judge if he had a lawyer, to which a negative answer was given; that he did not then or at any time ask that he be allowed to employ counsel, or to have the court appoint counsel for him; that he is a man fifty-six years of age, with normal intelligence; that the charges on which he was tried were made against him on July 6, 1942, and on the next day he made bond for his appearance; that between July 7, 1942, and October 9, 1942, the date of his trial, he was at liberty on bond and could have availed himself of the opportunity of employing counsel, for that during said period he was able to work and did work and earn money; that upon the call of the case he answered and pleaded not guilty; that at no time between the call of the calendar and the call of the case for trial did he indicate any desire that the court appoint counsel for him; that when the case was called for trial the charges were read to him, and he again pleaded not guilty; that said facts were noted on the accusation; and that after witnesses had been sworn, evidence was produced against him which tended to show that he was guilty of the offense charged. The court adjudged him guilty and entered sentence thereon. No notice of appeal was given, although at the date of filing the petition for habeas corpus the time had not expired during which he might apply for a writ of certiorari.
At the hearing of this petition he introduced in evidence the accusation in the criminal court of Fulton County in the case of the State v. Robert Cobb, charged with lottery, with all endorsements thereon and the sentence of the court, a true copy of which was attached to the application, as follows: "The defendant in the within accusation waives arraignment, list of witnesses, copy of accusation, and pleads not guilty. This 9th day of Oct., 1942. Bond Almand, Solicitor. I find the prisoner guilty. Date, 10-9-42. Jesse M. Wood, Judge C. C. F. C." And then follows the sentence of the court that he be put to work on the public works of the county for twelve months, with the privilege of paying a fine and costs, etc., and that upon service of four months of the sentence the remainder should be suspended.
On the hearing the petitioner testified as follows: "My name is Robert Cobb. I am the petitioner in this case. When I went down in the criminal court of Fulton County, Georgia, on this case, number 180,384, on the 9th day of October, 1942, I did not waive any of my rights to assistance of counsel. No one told me that I had the right to the benefit of counsel. No one told me of my constitutional right to the benefit of counsel. I did not waive my right of trial by jury. No one told me of my constitutional right to trial by jury. No one there asked me whether I wanted an attorney to represent me but Judge Wood, after they done turned it over; he just asked did I have a lawyer, and I told him I did not have one. He asked did I have an attorney, after the solicitor had turned all the papers over to him and he was fixing to pass sentence. That was after they had introduced the evidence and everything. When I was up in front of the court I told him I was not guilty of writing. I told him the book was caught there but I did not have time to write and I was not guilty of writing, and I asked the mercy of the court. It was the first time I had been before them, and they just framed up on me; that is what I told him. I mean that was the first time I had been before him on any charges like they had. I tried to get an attorney; my bondsman told me he was going to get one. I didn't try, but he told me he was going to get one. I told him I would pay him. It was my understanding that an attorney was going to be there; that is what I was looking for. I had used diligence to get one. They did not read any indictment or accusation to me; didn't do anything." On cross-examination he testified: "I am fifty-six years old. I work at the Grinnell Company Pipe Shop, down on Highland Avenue. I have been there twenty-five years. I have been in good health during the last three or four months, been working regularly since I was arrested. I was arrested the 6th day of July. I was charged with playing the number game. I made a bond the same day. I had a bond of a thousand dollars. I paid Mr. Garner the bond fee of fifty dollars. Since that date until the case was called on October 9th I had been out on bond. During that time I could have employed a lawyer, but my bondsman told me he was going to get one. When the case was called I did not tell the court that my bondsman was looking out for me for a lawyer, but he was right there. I was depending on him. Just before the trial he came out and said, `Robert, I have got everything fixed for you. You have got $5?' I said, `Yes, sir.' He said, `All right, I am going to fix everything for you,' and that is every word he said. I didn't tell the court I was waiting on him to employ any lawyer; they didn't give me a chance to tell anything. I never consulted a lawyer myself from July until the time I was tried. I never employed any lawyer. I remember, when the case was first called on October 9th, I said not guilty. It was an hour and a half before my case was tried; the first time my name was called I said not guilty. Then there were other cases tried. Between the time I first said not guilty and when I was called up before Judge Wood, for about an hour and a half or something like that, I was in the court-room. When I was called the first time I did not tell the court I did not have a lawyer. I didn't ask the court to appoint me a lawyer; they didn't give me a chance, didn't ask me any questions at all. When the case came up I remember you tried the case as solicitor. I don't remember that when I walked up before the bar Judge Wood asked me did I have a lawyer, before the officers were sworn. I don't remember that. As to whether the paper was read to me, I remember you reading a paper to me about Robert Cobb charged with operating a lottery known as the number game, on July 6th, 1942. I remember you had a paper. You read that paper. That was before you swore the officers. They held up their hands. Then they testified; the man that arrested me came up there. Then I made my statement. The judge found me guilty and imposed sentence. I did not ask the court to get me a lawyer during any of that time. I can read and write a little bit. I have never been in trouble before. I have never employed a lawyer in my life for anything any more than — I didn't employ him then; I was garnisheed. I had a lawyer then. Nobody kept me from employing a lawyer."
Bond Almand, the solicitor, testified: "As the solicitor I tried this case against Robert Cobb, and before the issue was joined as Robert Cobb came before Judge Wood he asked him the question, `Have you a lawyer?' and Cobb said, `No.' He did not then at any time ask the court to appoint him counsel. The court would have appointed counsel if he had so requested, because there were lawyers in the court-room at the time; the same policy pursued in this case is pursued in all cases." On cross-examination the solicitor testified: "I did not tell him he had a right to a jury, though, because that is not incumbent upon the solicitor or court either. The court did not ask him if he wanted a jury, because they only get a jury under the statute in our court under the request of the defendant himself. I did not inform him he had that right; he would be a man of normal intelligence. He did not have a jury, the records show he did not."
At the conclusion of the testimony the judge entered an order granting the prayers of the petitioner and discharging him from custody. Clarke, the respondent, excepted.
In order for the applicant for the writ of habeas corpus to prevail, it must appear that his detention is illegal. His imprisonment being under a sentence of a court, after a finding of guilty on a criminal charge, he must show that the judgment of conviction was void. His insistence is that his contention must be sustained, for two reasons. First, that he was not given a trial by jury. Second, that he was tried without having an attorney to represent him. There is not even a suggestion in the record that he requested either; and therefore there was no express refusal to permit his guilt or innocence to be passed upon by a jury of his peers, or a refusal to allow him the benefit of counsel. In the absence of a request for either, we are to determine whether his conviction is void because the court did not force him to be tried by a jury, and whether the failure of the court, under the undisputed facts of this record, to appoint counsel to represent him, rendered his trial and conviction void.
1. There is ample provision in the law relating to the practice and procedure in the criminal court of Fulton County for a trial by jury when one is demanded. See Welborne v. Donaldson, 115 Ga. 563 ( 41 S.E. 999); Ga. L. 1935, p. 498; Ga. L. 1890-91, p. 935, sections 7, 12, 15; Ga. L. 1871, p. 57. It is in section 33 of the act last referred to provided that "The proceedings after accusation shall conform to the rules governing in the superior court, except there shall be no jury trial unless demanded by the accused," etc. In the absence of such a demand, the judge, as required by the act, became the trior of fact on the issue made by the plea of not guilty. A defendant in a misdemeanor case can waive trial by jury. "There is no reason why a prisoner in a case of this kind should not have the right to be tried by a conscientious and intelligent judge, if he prefers it, as well as the right to be tried by a jury." Logan v. State, 86 Ga. 266 ( 12 S.E. 406). The converse of this proposition was ruled in Taffe v. State, 90 Ga. 459 ( 16 S.E. 204). The act creating the city court of Floyd County declares that "the trial of all issues of fact in said court shall be by the court without a jury, except where either party in a civil case or the defendant in a criminal case shall in writing demand a trial by jury;" and that "the failure to file such demand at or before the beginning of the trial shall be a waiver of said right." Acts 1882-3, pp. 535, 538. The record in the Taffe case, shows that the accused was tried by the court with a jury, although none was demanded; and of this he complained. This court ruled that since it did not appear that before judgment he made any objection to this mode of trial, he waived it. In Wadkins v. State, 127 Ga. 45 ( 56 S.E. 74), this court, on the motion of the accused, granted him a new trial because the judge compelled him to be tried by a jury, instead of by the judge. For further Georgia cases sustaining the view that under the facts of this record, the defendant failing to avail himself of the opportunity to have a jury trial, his constitutional rights were not invaded, see the following, and the authorities cited and discussed therein: Pelham Manufacturing Co. v. Powell, 8 Ga. App. 38 ( 68 S.E. 519); Wiggins v. State, 17 Ga. App. 748 ( 88 S.E. 411); Twine v. Slaton, 17 Ga. App. 691 ( 87 S.E. 1096); Owen v. Stevenson, 18 Ga. App. 391 ( 89 S.E. 435); Hargrett v. Jolley, 34 Ga. App. 662 ( 130 S.E. 602); Murray v. State, 35 Ga. App. 168 ( 132 S.E. 395); Waterman v. Glisson, 115 Ga. 773 ( 42 S.E. 95); Heard v. Kennedy, 116 Ga. 36 ( 42 S.E. 509); Miller v. Georgia Railroad Bank, 120 Ga. 17 ( 47 S.E. 525); Terry v. Drew, 143 Ga. 473 ( 85 S.E. 314); Crowell v. Akin, 152 Ga. 126 ( 108 S.E. 791, 19 A.L.R. 50). The general rule is in accord with the foregoing. See 35 C. J. 216; 31 Am. Jur. 578. The Supreme Court of the United States has said the constitutional right to a jury trial may be waived by proceeding to trial without demanding a jury. Duignan v. United States, 274 U.S. 195 ( 47 Sup. Ct. 566, 71 L. ed. 996).
2. It is next to be considered whether the petitioner was entitled to his discharge on the ground that he had been denied his constitutional right to the benefit of counsel. If such right was denied him, or even if it has been unduly abridged, this court will not refuse to give effect to the remedies that are available to him. See Walker v. State, 194 Ga. 727 ( 22 S.E.2d 462).
The criminal court of Fulton County has jurisdiction of misdemeanor cases only. The misdemeanor charge on which the petitioner was tried was that of operating a lottery, to wit, a "number game." He was arrested on July 6, 1942. On the next day he made bond for his appearance, and remained at liberty thereunder, and was at liberty when placed on trial. He was able to pay his bondsman a fee or charge of fifty dollars for arranging his bond. He is fifty-six years old. He has had steady employment at the same place for twenty-five years, and, so far as it is shown, is still so employed. His counsel in his brief interprets his testimony as showing that "he can read and write a little bit." He came into court with his bondsman, and they had some conversation relating to his trial. This did not relate, however, to any desire for counsel. Therefore the case is not one in which a mere child or an ignorant pauper was rushed from prison to the court-room and was placed on trial in denial of his right to have the benefit of counsel.
In Walker v. State, supra, it was held that under the showing there made, the prisoner, being in jail, charged with murder, was deprived of the opportunity to procure counsel of his own choice, the judge overruling his motion to postpone the trial so as to permit him to communicate with his family in order to procure counsel; and therefore the rights guaranteed to him with respect to the benefit of counsel were denied him. No such case as that is here presented. In Elam v. Rowland, 194 Ga. 58 ( 20 S.E.2d 572), Elam had pleaded guilty to a felony charge, and was sentenced to the penitentiary for a period of years, as well as having pleaded guilty to a misdemeanor charge. He applied for his discharge on habeas corpus on the ground that he had been deprived of the benefit of counsel. This court, recognizing his right to counsel, nevertheless ruled that it might be waived, and that it had been waived in that case. Nothing there supports the position of the petitioner in the instant case. In the opinion in that case, however, authorities are cited which negative the claim asserted by him.
In the instant case the petitioner was not forced to go to trial without counsel; he did not ask for counsel; he was not denied the opportunity to procure counsel; nothing done by the trial court forbade his securing counsel or obtaining the benefit thereof. Hence there was no denial, or even an abridgment, of any right secured to him by the constitution of this State, and that of the United States. In this respect the principle laid down by the Court of Appeals in Gatlin v. State, 17 Ga. App. 406 ( 87 S.E. 151), is applicable, to wit: "The right and privilege of one accused of crime to be defended by counsel is not denied by a mere failure of the court to assign counsel, when it does not appear that counsel is wanted. If the accused has means to employ counsel and is out upon bond, and has opportunity to secure counsel, and neglects or refuses to do so, the court is under no obligation or duty to appoint counsel to represent him." Nothing decided in Johnson v. Zerbst, 304 U.S. 458 ( 58 Sup. Ct. 1019, 82 L. ed. 1461), constrains us to the contrary. This and related questions were considered in Betts v. Brady, 316 U.S. 455 ( 62 Sup. Ct. 1252, 86 L. ed. 1116), and what is here ruled is in accordance with what was decided in that case.
The applicant did not allege or contend, and does not now contend, either that he was unable to employ counsel, or that he was ignorant of his right to counsel; and under the pleadings and the evidence a finding in favor of neither proposition would have been authorized. The court erred in discharging him.
Judgment reversed. All the Justices concur.