19 S.E.2d 499 | Ga. | 1942
After conviction of a criminal offense, the defendant sought his release by the writ of habeas corpus, alleging that attorneys appointed to defend him were so ignorant, inexperienced, or grossly lacking in appreciation of their responsibility as to amount to virtually no representation, and that consequently he was deprived of the benefit of counsel as guaranteed by the State and Federal constitutions. After the introduction of evidence by applicant and respondent, the judge remanded the applicant to custody, and he excepted. Held, that the evidence introduced by the parties respectively, without objection, demanded the finding that the applicant was not denied the benefit of counsel, as contended, and that the evidence rejected would not have authorized a different result. The court did not err in remanding the applicant.
In Delk v. State,
In Aycock v. State,
In the present case it is complained, first, that the court erred in excluding certain evidence; and second, that with or without *666 the evidence so excluded it was error under the record to remand the prisoner. The evidence rejected related to alleged unlawful manner in which the grand and traverse jurors were selected by the jury commissioners. As to this evidence, it may be said that unless the attorneys who were appointed for the accused had knowledge or notice that the jury commissioners had not complied with the law, they were authorized to assume that the commissioners had fully performed the duties required of them. Therefore, in the absence of anything to show that the attorneys knew or had notice that the jurors were improperly selected, evidence of the alleged resulting defects and of failure of the attorneys to raise the question would not tend to show incompetency on their part, and the proffered evidence was properly excluded for irrelevancy. But even if such knowledge or notice had been shown, and if the relevancy of the evidence had been thus made to appear, this evidence alone would not have been sufficient to authorize the applicant's discharge; nor would its exclusion have been harmful, unless all of the evidence admitted, considered with that rejected, would have authorized a finding in his favor. It is our opinion that on such basis a finding for the applicant would not have been authorized.
In the conduct of a trial broad latitude of advice, direction, and policy in the interest of the client is essentially vested in counsel. If the indictment could be quashed on account of some infirmity, and the defendant could be reindicted and put on trial under a sufficient indictment, counsel even if knowing of such defect might reasonably conclude upon some ground that it would be better for his client to waive the defect and proceed to trial, speedy trial itself being one of the things considered desirable, in both the State and Federal constitutions, especially as to an accused who is innocent, as the applicant here was presumed to be before his conviction. The same reasoning would apply to a challenge relating to traverse jurors and so affecting the jury lists or boxes as to require revision by the jury commissioners, which also would involve delay, on the theory presented.
Furthermore, it appeared from the evidence that one of the attorneys had been a member of the bar for more than a quarter of a century, and was well experienced in the trial of both civil and criminal cases. Conceivably, from experience and observation, *667 he might have believed in good faith that the fate of his client would be just as safe in the hands of the grand and traverse jurors actually chosen by the jury commissioners, as with any that might be chosen for the lists and boxes upon revision according to any standard, and ultimately called for service. He might reasonably have thought that the jurors whose names were already in the jury-boxes were fair and impartial, and, even though they were not of defendant's own race, that they could be depended on to deal justly with him according to the evidence, no less than would jurors of his own race or jurors selected in part from both races. Again, if the lists should be revised, there would be uncertainty as to what individuals of all listed by the jury commissioners might at any time be summoned for service, and it might have been considered advisable to rest upon the known rather than to speculate upon the unknown. Still other reasons might have actuated counsel in deciding on the course to pursue in the interest of the client.
Counsel often waive apparently important points in the bona fide belief that, on the whole, greater advantage will be gained indirectly than might have been gained directly by insisting on them, and such a waiver either express or implied would ordinarily not tend to show incompetency. No lawyer is infallible, and the constitutional guaranties of the benefit of counsel, and of due process, do not contemplate such infallibility.
Under the allegations of the present petition and the former decision by this court, the question for determination on the trial now under review was not whether the indictment might have been quashed for some reason, or whether the array of traverse jurors may have been subject to challenge, but was whether the accused had been deprived of the aid and benefit of counsel, as charged in the petition; and the latter question depended, not on whether the ablest or most skillful attorneys were appointed for him, but on whether the attorneys actually appointed were so ignorant, inexperienced, or grossly lacking in appreciation of their responsibility as to amount to virtually norepresentation upon his trial.
Evidence besides that rejected was introduced by the applicant, including testimony of himself and certain of his relatives, showing claim of the defense of alibi and seeking to establish that such defense was not well prepared or presented. The evidence for the respondent included an affidavit by the judge before whom the applicant *668 was tried on the criminal charge, showing experience of the appointed attorneys, the opportunities afforded them for preparation of the defense, and something as to the manner in which the defense was conducted. The respondent also introduced as a witness the "older and more experienced" of the appointed attorneys, who testified at length on direct and cross-examination. He testified as to his experience as a lawyer, the character of his library, the extent of his present practice, consultation with the accused, and the activities of himself and his appointed associate in preparing and presenting the defendant's defense. The other attorney was not sworn as a witness, but his absence was accounted for. The respondent also introduced a sworn transcript of the evidence adduced upon the trial under the indictment, showing lengthy and skillful cross-examination of the State's witness.
The burden was on the applicant to sustain his contention that he was denied the benefit of counsel; and, as indicated above, in order to sustain such contention it was incumbent on him to show that he was virtually unrepresented. The evidence as a whole, including the evidence rejected, would not have authorized a finding to that effect. While there might have been some slight conflicts between the evidence for the applicant and that of the attorney, as to the period of time spent by counsel in conference with the accused, and as to other matters, there was no sufficient evidence to overcome the presumption of competency and fidelity, fortified as it was by other and undisputed evidence showing not only that the accused did have the benefit of counsel within the purview of the State and Federal constitutions, but that counsel were both able and faithful.
It follows from what has been said that the court did not err in remanding the prisoner to custody.
It is contended by the respondent that the record shows that a motion for a new trial could have been filed by present counsel, and that in such case the writ of habeas corpus would not lie. For this additional and independent reason, it is insisted that the judgment should be affirmed. It is unnecessary to pass on this question.
Judgment affirmed. All the Justices concur. *669