39 S.E.2d 61 | Ga. | 1946
1. The writ of habeas corpus will not lie after conviction, for the purpose of obtaining a release of the prisoner upon the ground of lack of counsel on his trial, when it appears that such question had been raised before the trial court in his motion for a new trial following the conviction, that the trial court upon conflicting evidence had overruled such contention, that such ruling had been affirmed by this court, and that the Supreme Court of the United States had refused to grant a writ of certiorari to review the judgment of this court.
2. In this State the common-law rule that the doctrine of res judicata does not extend to the trial of habeas corpus proceedings is not of force, and such proceedings are subject to the provisions of the Code, § 110-501.
(a) Accordingly, where in response to a petition for habeas corpus, brought by a wife to obtain the release of her husband, the respondent filed a plea of res judicata, and on the trial it appeared without dispute that upon the trial of a previous habeas corpus, brought in the United States District Court by the husband and based upon substantially the same grounds, a judgment had been rendered against the petitioner, that the judgment had been affirmed by the Circuit Court of Appeals, and that the United States Supreme Court had denied a writ of certiorari to review the latter judgment, the trial judge did not err in sustaining such plea of res judicata and in remanding the petitioner's husband to the custody of the respondent.
3. The above conclusion would likewise result, as applied to the facts of this case, even under the rule adopted by the United States Supreme Court, namely, that although res judicata does not apply strictly in a habeas corpus case, nevertheless the trial judge may consider, and even give controlling weight to, a prior refusal to discharge on a like application, after considering the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it.
4. An applicant for the writ of habeas corpus may not without excuse withhold allegations from his petition and thereafter use them on a second *133 attempt if the first should fail. Even if it should be assumed that there were material allegations of fact in the instant petition additional to those in the previous applications, no sufficient reason appears for withholding them from such previous applications.
5. Under the principles of law above stated, the judgment of the trial court denying to the petitioner the discharge of her husband is affirmed.
The plea alleged: That the conviction of Sylvester Andrews had been affirmed by the Supreme Court of Georgia (see
Upon the hearing the respondent introduced in support of his plea a large mass of documentary evidence, and specific reference to certain portions thereof will subsequently be made. This plea was sustained, and the petition for habeas corpus was dismissed by Judge Cowart on January 15, 1946, and a bill of exceptions was sued out to this court. The substantial question for determination is whether, under the undisputed evidence, the judgment refusing to discharge the prisoner was proper.
1. The principal insistence of the plaintiff in error is that her husband, Sylvester Andrews, in his trial in Bibb Superior Court was not afforded his constitutional right to the benefit of counsel, guaranteed by the Georgia Constitution (Code, § 2-105), and by the due-process and equal-protection clauses of the Federal Constitution. See Ga. Code, § 1-815. The petition attacks the competency of the attorney employed by the defendant's family to represent him upon his trial. From records in evidence it appears that *135
the same question had been raised before the trial court by amendments to his motion for a new trial following his conviction; that conflicting evidence had been heard by the trial court upon that issue; that the decision of the trial court overruling such ground had been subsequently affirmed by this court (see
As to the other alleged errors claimed in the petition for habeas corpus to have been committed on the trial of Andrews in Bibb Superior Court, each of them was either raised and determined, or could have been raised and determined, in that court, and consequently, *136 under the cases above cited, would not constitute sufficient grounds for discharge on a habeas corpus petition.
2. We consider that we would be justified in resting our decision upon the principles just stated. However, it further appeared without dispute on the trial of this case in the lower court that the same issue (as to whether Andrews had the benefit of counsel on his trial) had been made the subject-matter of a habeas corpus trial in the United States District Court for the Middle District of Georgia, in which the discharge of the prisoner was denied, and that such judgment was affirmed by the Circuit Court of Appeals and a writ of certiorari to review such judgment had been denied by the United States Supreme Court. The question now arises as to whether such decision of the district court is res judicata as to questions raised by the petition for habeas corpus in the instant case.
Upon the trial before Honorable Bascom S. Deaver, judge of such district court, Andrews was represented by competent counsel, and no attack is made upon the jurisdiction of that court. That able judge (since deceased), with his usual clarity and thoroughness, stated his findings of fact and rulings of law. Among other things, he ruled that the legal representation afforded Andrews on his trial did not amount to a nullity, which would have to be found in order to hold that the defendant had been tried without benefit of counsel. The judge held that "a defendant's representation by a licensed attorney of his own choice satisfies the constitutional mandate, and a trial judge has no authority to pass upon the relative merits or capacities of licensed attorneys, or to prevent an employed attorney from representing his client, even though the judge might think the attorney entirely incompetent." Judge Deaver also found that "most of the questions [that is in the habeas corpus proceeding before him] have been determined adversely to petitioner by the Supreme Court of Georgia, and review denied by the Supreme Court of the United States;" and he cited Ex parte Henry Hawk,
The foregoing was approved by the Circuit Court of Appeals, its opinion saying in part: "In the absence of proof of such mental *137
incapacity as flows from an unsound mind, on the part of defendant or his chosen counsel, in such circumstances, this court can not say that due process of law was denied defendant, or that the State court lost jurisdiction of the case." See Andrews v. Robertson, 145 F.2d 101. As above pointed out, a writ of certiorari to review this ruling was denied by the United States Supreme Court. Andrews v. Robertson,
Was the judgment of the Federal District Court, affirmed by the Circuit Court of Appeals and followed by a refusal of certiorari by the United States Supreme Court, sufficient, in and of itself, to require the trial court to refuse relief to the petitioner? Counsel for the plaintiff in error contend that "the common-law doctrine of res judicata does not extend to a decision on habeas corpus refusing to discharge a prisoner." Citing Salinger v. Loisel,
It is true that such was the rule at common law, which has been adopted in some jurisdictions, and changed by statute in others. See 25 Am. Jur. 250, § 156. In at least three earlier cases, this court has adopted a contrary rule and applied to habeas corpus proceedings the principles contained in the Code, § 110-501, which reads as follows: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." In Perry v. McLendon,
3. We are aware of many rulings of our Federal courts to the effect that "the common-law doctrine of res judicata does not extend to a decision on habeas corpus refusing to discharge a prisoner." That statement is contained in Salinger v. Loisel, supra, but in the opinion in that case, and in subsequent decisions by that court and various United States circuit courts of appeals, we find that the rule is subject to important qualifications.
In Salinger v. Loisel, supra (p. 230), the court said: "But it does not follow that a refusal to discharge on one application is without bearing or weight when a later application is being considered. In early times when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given, the reason for that practice ceased and the practice came to be materially changed — just as when a right to a comprehensive review in criminal cases was given the scope of inquiry deemed admissible on habeas corpus came to be relatively narrowed. The Federal statute . . does not lay down any specific rule on the subject, but directs the court `to dispose of the party as law and justice may require.' A study of the cases will show that this has been construed as meaning that each application is to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, *139 and even given controlling weight are, (a) the existence of another remedy, such as a right in ordinary course to an appellate review in the criminal case, and (b) a prior refusal to discharge on a like application. . . The officers before whom the second application is made may take into consideration the fact that a previous application has been made to another officer and refused; and in some instances that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it." Salinger v. Loisel, supra (pp. 231, 232).
As to the practical effect of such a rule, this comment is made: "In practice the rules we here have outlined will accord to the writ of habeas corpus its recognized status as a privileged writ of freedom, and yet make against an abusive use of it. As a further safeguard against abuse, the court, if not otherwise informed, may on receiving an application for the writ require the applicant to show whether he has made a prior application and, if so, what action was had on it." (p. 232.)
The Salinger case is itself authority for ruling that a discharge on a habeas corpus trial may be denied solely for the reason that there has been a refusal to discharge in a former habeas corpus proceeding. A careful reading of that case will show that a discharge of the prisoner was there denied upon the strength of the adjudication made in previous proceedings brought by the petitioner in other Federal courts. While the decision of the trial court in that case was reversed in part, such reversal pertained only to its refusal to recognize the right of the prisoner to be released upon giving bail, but in all other respects he was remanded to the custody of the respondent.
The Salinger case has been several times cited by the United States Supreme Court, and many times by various circuit courts of appeals. All of those decisions, taken together, will clearly demonstrate that under many circumstances "the doctrine of res judicata" does extend to a decision on habeas corpus refusing to discharge a prisoner, though not in its usually strict and ordinary sense.
In Wong Doo v. United States,
In Pope v. Huff, 141 F.2d 727, it was said: "Though the doctrine of res judicata does not apply to habeas corpus proceedings, the fact that the same issues have been decided in a former proceeding may, and sometimes should, as a matter of judicial discretion, be given controlling weight." In Rookardv. Huff, 145 F.2d 708, the United States Circuit Court, District of Columbia, ruled that a trial judge may take judicial notice of the record in a case and, where the habeas corpus petition presented to him discloses the same grounds as in a previous one, he may deny it. In Swihart v. Johnson, 150 F.2d 721, controlling weight was given to the prior adjudication, and the court laid down the following rule: "Each petition is to be disposed of in the exercise of a sound judicial discretion, guided and controlled by whatever has a rational bearing on the propriety of the discharge sought."
There are cases where the Federal courts have refused to recognize previous adjudications, such as Waley v. Johnson,
Under the foregoing decisions, we hold that the judge of the City Court of Reidsville could not legally have passed any other judgment than the one rendered, refusing a discharge. The question as to whether Sylvester Andrews had the benefit of counsel, as *141
stated above, had been adjudicated by Judge Deaver, the judgment affirmed by the Circuit Court of Appeals, and certiorari denied by the United States Supreme Court. The proceedings in the State court had been completed when the petition was presented to Judge Deaver. Authority to entertain habeas corpus proceedings has by Congress been vested concurrently in the United States Supreme Court (Revised Statutes, § 751;
4. It is contended, however, by the plaintiff in error that the petition for habeas corpus in the City Court of Reidsville contained subject-matter in addition to that contained in previous petitions, including the one heard by Judge Deaver. It is contended that present counsel for the plaintiff in error had been previously requested not to make an all-out attack upon the competency of counsel representing Andrews on his original trial; that previous attacks upon such counsel had been "powder-puff attacks;" and that therefore the judgments in previous proceedings were not controlling. In our opinion the foregoing should not change our ruling in this case. An applicant for habeas corpus may not without excuse withhold allegations from his petition and thereafter use them on a second attempt if the first should fail. Wong Doo v. U.S.,
By nothing we have said above do we wish to minimize the importance of the constitutional guarantee of benefit of counsel, or the place of high privilege universally accorded to the writ of *142 habeas corpus. That writ may, however, if its use is not reasonably restricted, become an instrument whereby the enforcement of the law could be seriously impeded, if not defeated. As to possible abuses of its use, we call attention to the dissenting opinion by (then) Associate Judge Rutledge of the United States Circuit Court, District of Columbia, in Ex parte Rosier, supra. See also the editorial note following Dorsey v. Gill, 148 F.2d 857, 870, note 71, citing Freeman on Judgments, as follows: "If a final adjudication upon a habeas corpus is not to be deemed res judicata, the consequences will be lamentable. This favored writ will become an engine of oppression instead of a writ of liberty."
As the judgment of the trial judge in the instant case, refusing a discharge, was based only upon the plea of res judicata and the supporting evidence, we can not be sure that he exercised a judicial discretion in giving controlling weight to the previous judgments in habeas corpus proceedings, or whether he felt bound by such previous adjudications under the doctrine of res judicata as strictly applied. As we view this case, however, the foregoing is not important, as our ruling is that the trial court would not have been authorized to discharge the prisoner, in view of the following: (1) All questions concerning alleged errors or irregularities upon his original trial, including the want of benefit of counsel, were heard and determined by the trial court on motion for new trial. The judgment refusing a new trial was affirmed by this court, and certiorari was denied by the United States Supreme Court. (2) In habeas corpus proceedings before Judge Deaver in the District Court for the Middle District of Georgia, he denied a discharge, which judgment was approved by the United States Circuit Court of Appeals, and certiorari was denied by the United States Supreme Court. Under the Georgia rule as to res judicata, the judgment of Judge Deaver is conclusive upon the petitioner. (3) Such proceedings in the Federal court, even under the modified rule as to res judicata adopted by the United States Supreme Court, required the denial of a discharge.
For the purpose of this decision, it is not necessary to consider the effect of habeas corpus proceedings before Judge Baldwin in the City Court of Macon, nor the proceedings before Judge Mallory Atkinson of Bibb Superior Court, followed by three mandamus proceedings in this court seeking to require Judge Atkinson to certify *143 bills of exceptions, in each of which cases a mandamus nisi was denied by this court. (Certiorari denied by U.S. Supreme Court, March 4, 1946; motion for rehearing denied April 1, 1946.)
The judgment of Judge Cowart of the City Court of Reidsville, denying to the petitioner the discharge of her husband, Sylvester Andrews, is therefore affirmed.
Judgment affirmed. Bell, C. J., Jenkins, P. J., Duckworth,Atkinson, Wyatt and Candler, JJ., concur. Head, J.,disqualified.