Opinion
16924.
FEBRUARY 13, 1950. REHEARING DENIED MARCH 15, 1950.
Habeas corpus. Before Judge Moore. Fulton Superior Court. October 3, 1949.
Charles A. Wofford, G. A. Huddleston, and Harris, Henson, Spence Gower, for plaintiff.
Eugene Cook, Attorney-General, Wright Lipford, Solicitor-General, J. R. Parham, Assistant Attorney-General, and Myer Goldberg, for defendant.
1. "A writ of habeas corpus can not be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors or irregularities alleged to have been committed by a trial court." Shiflett v. Dobson, 180 Ga. 23 ( 177 S.E. 681); Harrell v. Avera, 139 Ga. 340 ( 77 S.E. 160); Owen v. White, 182 Ga. 67 ( 185 S.E. 97); Kinman v. Clark, 185 Ga. 328 ( 195 S.E. 166); McKay v. Balkcom, 203 Ga. 790 ( 48 S.E.2d 453).
( a) The attacks made in this case by the defendant upon his conviction are not based upon any rulings or orders of the trial court wherein the defendant was convicted. A defendant may not assert his defense by piecemeal, nor will he be permitted to rest his chances for a new trial upon some of the errors alleged to have been committed upon the trial of his case, and thereafter, upon the denial of his motion for new trial, substitute the writ of habeas corpus to review alleged assignments of error which might have been included in the former motion for new trial, had such assignments been properly predicated upon some adverse ruling by the trial court.
2. The writ of habeas corpus "is the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its jurisdiction in making the order, rendering the judgment, or passing the sentence by virtue of which the party is imprisoned, so that such order, judgment, or sentence is not merely erroneous, but is absolutely void." Wells v. Pridgen, 154 Ga. 397, 399 ( 114 S.E. 355); Henson v. Scoggins, 203 Ga. 540 ( 47 S.E.2d 643); McKay v. Balkcom, supra.
( a) Neither the petition for a writ of habeas corpus, nor the evidence of the defendant in support of the writ, shows that the original conviction of the defendant is void for any reason, and the trial court did not err in remanding the custody of the defendant to the sheriff.
Judgment affirmed. All the Justices concur.
No. 16924. FEBRUARY 13, 1950. REHEARING DENIED MARCH 15, 1950.
John Wallace was convicted on an indictment charging that he murdered Wilson Turner. The judgment overruling his motion for new trial was affirmed by this court. Wallace v. State, 204 Ga. 676 ( 51 S.E.2d 395). The judgment denying his extraordinary motion for new trial was likewise affirmed by this court. Wallace v. State, 205 Ga. 751 ( 55 S.E.2d 145). After a hearing, his petition for a writ of habeas corpus was denied, and he was remanded to the custody of the Sheriff of Fulton County. The exception is to that judgment.
His petition for writ of habeas corpus (omitting the formal parts) in substance alleged: The defendant's conviction of the murder of Wilson Turner resulted from the perjured testimony of Albert Brooks and Robert Gates, who were induced by Lamar Potts, Sheriff of Coweta County, to testify that they had been forced by the defendant to take the body of Wilson Turner and destroy it by cremation. Such testimony was wholly false, but was controlling in the case and brought about the defendant's conviction. After the alleged commission of the crime, Potts spirited these prisoners from the jurisdiction of the court to a place of imprisonment unknown to the defendant or his counsel, and refused to permit communication with them. Neither the defendant nor his counsel was permitted to see either Gates or Brooks until they were placed upon the witness stand during the defendant's trial. Thus this officer illegally and wrongfully limited the defendant's opportunity to develop his case factually, which was a denial of substantial constitutional rights guaranteed by the Federal Constitution, and particularly the 14th Amendment thereof. Potts and other officers, unknown to the defendant, induced Gates and Brooks to waive their constitutional immunity from giving testimony which might tend to incriminate them. These officers forced and induced the witnesses to give perjured testimony, by threatening physical violence to their persons and by promises of immunity to prosecution, stating to them, in substance, that if they would give such testimony, they would be released, and if they refused, they would be tried and electrocuted. The procurement of this testimony in the manner aforesaid was violative of the defendant's rights under the Federal Constitution, and particularly under the 14th Amendment.
Tom Strickland, Herring Sivell, and Henry Mobley were jointly indicted with the defendant, and they knew, and were willing to testify, that Wilson Turner was alive, well, and uninjured in Meriwether County several hours after the State contended that he had been murdered in Coweta County. There was no evidence to the contrary, and such testimony would have entitled the defendant to an acquittal. Potts and other officers wrongfully induced his codefendants to claim constitutional immunity, the inducement being that they would receive punishment less than the maximum. Within 48 hours after the defendant's conviction, his codefendants were given life sentences without trial. The suppression of testimony favorable to the defendant's defense, in the manner set forth, constituted a violation of his rights under the Federal Constitution, and particularly under the 14th Amendment thereof.
Potts, as Sheriff of Coweta County, assumed the role of prosecutor against the defendant, and thereby became disqualified to function as an officer of the court. Potts made a contribution of $500 from his personal funds as a reward for evidence against the defendant. While acting in the prosecution of the case, Potts assumed to summon grand jurors, before whom he appeared to procure an indictment, and to summon traverse jurors, before whom the defendant was brought to trial. Potts otherwise functioned as an officer of the court, being unable to act free of bias and prejudice and unable to accord the defendant fair and impartial treatment, because of personal interest in the outcome of the case.
Immediately after the homicide of Wilson Turner became known, two cosmopolitan newspapers published in Georgia's capital city, having general circulation in Coweta County, where the defendant's trial was had, began an attack on the defendant by news stories, editorials, magazine articles, and radio broadcasts. These articles went far beyond objective reporting, in that they falsely held the defendant out to be a "wealthy farmer," and Wilson Turner to be an innocent, unoffending "tenant farmer." Week after week this publicity covered the area from which prospective jurors were to be drawn, falsely parading the defendant before the people generally as arrogant, mean, and steeped in the crime of being "wealthy"; at the same time hurrying (burying?) the public records of Wilson Turner, as a cow thief and deserter from the United States Army in time of war, with the encomiums of innocence. These newspapers inflamed public opinion against the defendant and effectively convicted him in the great court of public opinion long before his trial, without giving him a chance to be heard in his own defense. A fair and impartial trial, such as is guaranteed by the Federal Constitution, was impossible. The withering blast of publicity by the publication of "letters from the people" has been continuous. The publicity campaign became intense, by editorials and by "letters from the people," when the defendant's case was presented to the State Board of Pardons and Paroles. This publicity robbed the defendant of a fair and unbiased consideration of his case by the Board of Pardons and Paroles, and the inflammatory matter robbed him of a fair trial, and was a denial of his constitutional right to a fair and impartial trial under the Federal Constitution, and particularly the 14th Amendment thereof. The publication of the inflammatory material violated his rights as a citizen of the United States, as guaranteed by the 6th Amendment to the Constitution of the United States.