The writ of habeas corpus is never a substitute for a review to correct mere errors of law.
McKay v. Balkcom,
The sentence of death by electrocution for rape, since the victim was not slain, is alleged to be a violation of the State and Federal Constitutions which forbid cruel and unusual punishment. The 8th Amendment
(Code
§ 1-808) of the Federal Constitution and Art. I, Sec. I, Par. IX of our State Constitution
(Code Ann.
§ 2-109; Const, of 1945), contain the identical words, “cruel and unusual punishments,” and expressly forbid their infliction. We believe this court fairly and correctly construed the meaning of that constitutional provision
(Code
§ 1-808) in
Whitten v. State,
No determination of this question is either wise or humane if it fails to take full account of the major place in civilized society of woman. She is the mother of the human race, the bedrock of civilization; her purity and virtue are the most priceless attributes of human kind. The infinite instances where she has resisted even unto death the bestial assaults of brutes who were trying to rape her are eloquent and indisputable proof .of the inhuman agonies she endures when raped. She has chosen death instead of rape. How can a mere mortal man say the crime of rape upon her was less than death? Man is the only member of the animal family of which we have any knowledge that is bestial enough to forcibly rape a female. Even a dog is too humane to do such an outrageous injury to the female.
We are not dealing with the wisdom of capital punishment in any case. That must be left by the judiciary to the legislative department. But any man, who can never know the haunting *11 torment of a pure woman after a brutal man has forcibly raped her, who would arbitrarily classify that crime below murder, would reveal a callous appraisal of the true value of woman’s virtue.
We reject this attack upon the sentence in full confidence that in so doing we permit the sovereign State, which is actually all the people thereof, to guard and protect the mothers of mankind, the cornerstone of civilized society, and the zenith of God’s creation, against a crime more horrible than death, which is the forcible sexual invasion of her body, the temple of her soul, thereby soiling for life her purity, the most precious attribute of all mankind. In such cases the law clothes the accused with full protection of his legal rights to a fair trial with all defenses, including insanity, available to him. His conviction can stand only if he has been lawfully tried, which will include that he is sane and responsible for his acts. An innocent man would want no more, and a guilty man is entitled to no more. So long as the legislature provides the death penalty for any crime, this court will uphold it for forcible rape, as there can be no more reprehensible crime. Accordingly the sentence of death violates neither of the Constitutions as contended.
Since this question follows so closely upon the dissenting opinion of Justices Douglas, Brennan and Goldberg in Rudolph v. Alabama,
Nor is the statute
(Codei Ann.
§ 26-1302; Ga. L. 1866, p. 151; Ga. L. 1960, p. 266), allowing the jury to fix the penalty at life imprisonment or one to twenty years unconstitutional because it furnishes no standard to govern the jury in making its determination of the sentence, as contended. Lawyers experienced in court procedures know that often where guilt is proven mitigating circumstances call for lessening the punishment, and the jury who hears the evidence can better than anyone else properly weigh such matters. For other cases involving cruel and unusual punishments see Weems v. United States,
The final attack is predicated upon the contention that the accused who is admittedly indigent, illiterate and ignorant to the point of incompetency was not furnished legal counsel as is required by the United States Constitution
(Code
§ 1-806) and the State Constitution
(Code Ann.
§ 2-105; Const, of 1945). We first decide the portion of this attack which is based upon the alleged incompetence or unfaithfulness of the appointed counsel. The attack upon his competency is overwhelmingly refuted by his demanding and securing another commitment hearing, and by his objections to the introduction of an alleged confession of the accused, together with the intelligent manner in. which he conducted the trial. The two major criticisms of counsel’s incompetency or unfaithfulness are: (1) he did not challenge the jury, and (2) he did not ask a State’s witness if the accused was assaulted in the doctor’s office. In the absence of more proof than this record contains, no lawyer could find that the jury was subject to challenge, and furthermore, a competent and faithful lawyer might believe it served the best interest of his client, since the juiy had wide power to reduce
*13
the sentence, not to challenge. Also it might have been, so far as this record discloses, that counsel knew the State’s witness would say no assault had been made upon the accused, which would have been injurious to his client. This case demonstrates the fallacy of allowing a second lawyer, aided by hindsight, to question the wisdom of the lawyer who tried the case where he had to act in the light of circumstances that he knew during the progress of the trial. These attacks upon the trial counsel are groundless and unjustifiably question his competency and honor. See
Williams v. State,
But the further portion of this attack is serious. It shows beyond dispute that, from the time the sentence of death was pronounced, this accused was wholly without counsel, and the time in which he could, under the law, file a motion for new trial passed while he was locked in jail, ignorant of his right to appeal, and without the advice of counsel as to his rights. Since his sentence was the extreme limit allowed by law he had all to gain and nothing to lose by making an appeal for a new trial. To say he would not wish for an appeal in these circumstances is to say he was utterly incompetent mentally. It is well established that lack of counsel for indigent persons being tried for crimes is a deprivation of their constitutional rights under the 8th Amendment, supra, and the Georgia Constitution.
Elam v. Rowland,
We do not allow our strong disapproval of the lack of counsel after sentence to inferentially censure the appointed trial counsel for his failure to move for a new trial. We think he was utterly mistaken as to his professional duty to protect the right of the accused and move for a new trial, but undoubtedly he thought he was appointed solely to try the case under Code Ann. § 27-3001, supra, and that other provisions for appeal counsel should be made by the judge under Code Ann. § 27-3002, supra. We would have hoped that he resolve every doubt in favor of his client and his professional obligation as a lawyer. For counsel employed and paid by an accused to fail, after a death sentence, to move for a new trial and seek a review, and abandon the case when no other counsel had been engaged to handle it, would raise a serious question as to his right to remain a member of the Bar. But the case of this appointed counsel can not be tested by that standard even though we think he should have considered it his professional duty to remain in the case.
For the reasons stated in Division 3 of this opinion we hold *15 that lack of counsel after the death sentence was imposed deprived the accused of his vital constitutional right to counsel and renders his trial and sentence void. The contrary judgment here excepted to is reversed with direction that the accused be given another trial in which he have counsel in conformity with this opinion.
Judgment reversed with direction.