Balkcom v. Williams

138 S.E.2d 873, 220 Ga. 359, 1964 Ga. LEXIS 550

• Court: Supreme Court of Georgia
• Decided: October 13, 1964
• Docket: 22589
• Status: Published

Opinions

Per Curiam.

Two indictments were returned against Charles P. Williams in Elbert County charging him with the offense of burglary. One alleged that he burglarized the storehouse and place of business of the Hawes Company, a partnership composed of Peyton S. Hawes and Virginia S. Hawes on the 6th day of January 1961, and the other that he burglarized the storehouse and place of business of the Gallant-Belk Company on the same day. He entered pleas of guilty to both charges on March 7, 1961, and was sentenced to serve a prison term of from 5 to 10 years for each offense, the sentences to run consecutively. On April 15, 1964, he brought habeas corpus against R. P. Balkcom, Warden of the State penitentiary and in his petition alleged that the sentences under which he was being imprisoned were null and void on the ground that he was unlawfully deprived of the right to counsel when arraigned for trial under the indictments. On the hearing he testified that he asked for counsel before entering his pleas of guilty but was advised that he had no need of counsel. He offered no other evidence in support of his application. Cíete D. Johnson who represented the State as solicitor general at the time of applicant’s arraignment and pleas, testified that he was not in any way denied legal counsel; that he voluntarily entered a plea of guilty to each charge; and that he made no request for legal counsel to represent him. The indictments, the two pleas of guilty and the sentences imposed upon him were introduced in evidence. The presiding judge sustained his application and ordered him released from respondent’s custody. The respondent excepted to that judgment. Held:

1. It is settled by numerous decisions of this court that where the trial judge is the trier of an issue of fact as in this case and the evidence is conflicting upon the issue of fact involved, his decision will not be controlled by this court where there is any evidence sufficient to support his findings. Walling v. Harris, 210 Ga. 97 (78 SE2d 7); Grier v. Balkcom, 213 Ga. 133 (97 SE2d 151). Applying this ruling in the instant case, the judgment complained of is not for this reason erroneous. See Balkcom v. Vickers, 220 Ga. 345.

2. In the instant case the trial judge directed that the applicant be given credit for the time served on the sentences here involved upon any sentence which may be imposed upon the applicant in the event of his conviction for either or both of the offenses for which he was previously sentenced. See the ruling of this court in Balkcom v. Vickers, 220 Ga. 345, supra, where it was held that the trial judge in a habeas corpus proceeding is without authority to give such direction and his effort to do so is a nullity.

Submitted September 14, 1964 Decided October 13, 1964 Rehearing denied November 5, 1964. Eugene Cook, Attorney General, Albert Sidney Johnson, Peyton S. Hawes, Assistant Attorneys General, B. Daniel Dubberly, Jr., Deputy Assistant Attorney General, for plaintiff in error.

Judgment affirmed in part; reversed in part.

All the Justices concur, except Candler, Almand and Mobley, JJ., who■ dissent.