A writ of error to review a sentence of murder was heard by the
Supreme Court of Georgia in banc and, the six justices being evenly
divided, the sentence was affirmed pursuant to Georgia Code of
1910, § 6116. Three of the justices participating did not hear the
argument, and one of them, voting affirmance, was not then
appointed, but after his appointment and before the affirmance,
notice
Page 243 U. S. 589
was given affording the convicted person opportunity for a
reargument, of which he did not avail himself.
Held that
the affirmance was not in violation of due process of law. A right
of appeal is not essential to due process under the Fourteenth
Amendment, and where it is allowed, the state may prescribe the
conditions and procedure.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Petition in habeas corpus, in which appellant was petitioner,
which presents the following facts, stated narratively:
Appellant is confined in the common jail of Ware County in
execution of a life sentence upon conviction for murder, the
sentence having been affirmed by the supreme court of that state.
The court was evenly divided in opinion, and therefore the judgment
was affirmed by operation of law under the provision of that part
of § 6116 of the Code of Georgia of 1910 which is as follows:
"In all cases decided by a full bench of six justices, the
concurrence of a majority shall be essential to a judgment of
reversal, and if the justices are evenly divided, the judgment of
the court below shall stand affirmed."
Three of the judges did not hear the argument, but participated
in the opinion of the court.
The case was argued before the supreme court on June 3, 1916,
and, when it was argued, Justice Gilbert was not even a member of
the court, but was appointed in
Page 243 U. S. 590
September, 1916, to fill the place made vacant by the death of a
member of the court.
Upon these facts, it is averred that appellant was denied a
right guaranteed by the Constitution and laws of the United States
-- the benefit of counsel and right to be heard -- which abridged
his privileges and immunities as a citizen of the United States,
deprived him of liberty without due process of law, and of his
right to have a judicial determination of his guilt or innocence by
a reviewing court.
Attached to the petition was a transcript of the record in the
trial court and the supreme court.
His prayer to be discharged was denied. An appeal was allowed,
the court certifying that there was probable cause.
It appears from the transcript of the record that the judgment
affirming the sentence was rendered after Justice Gilbert had taken
his seat as a member of the court, and that, if he had not taken
part, the judgment would have been reversed. It also appears that,
after the judgment, a petition for rehearing was filed which
attacked the statute permitting a judgment of affirmance by a
divided court upon the same grounds as those alleged in the
petition for habeas corpus and now urged here, and also attacked
the judgment for the participation therein of Justice Gilbert.
It was stated in the petition for rehearing as follows:
"This case having been heard before three justices by oral
argument, or rather Wash Lott having appeared by attorneys, the
case having been passed upon by the court as a whole, consisting of
the entire six judges, and the defendant not having been heard
before the said six judges, either in person or by attorneys,
movant begs leave to call the court's attention to § 6115 of the
Code of 1910, which is as follows:"
" Whenever any justice in either division differs from the other
two as to any particular case pending before
Page 243 U. S. 591
it, such case shall go to the court as a whole, or any one or
more justices of the other division may be argued before one
division only, it may, upon its own motion, but not otherwise,
order a reargument therein."
It was suggested that the court "hear reargument in this case on
its own motion" because the court had overlooked the section of the
Code quoted above and the provision of the Constitution of the
United States which gives assurance that no person shall be
deprived of his liberty without due process of law.
The petition was filed November 24th and overruled December 19,
1916. Upon what consideration it does not appear, but it may be
presumed that the court was of opinion that the statute of the
state had been adequately complied with. The Attorney General
asserts in his brief, and there is no denial by appellant, that,
after the appointment of Justice Gilbert, notice was given to
parties and counsel in all cases then pending in which argument had
been heard prior to his appointment, and which were to be passed on
by him, setting a time for reargument of such cases. The appellant
therefore was given an opportunity to be heard. Besides, the right
of appeal is not essential to due process.
Reetz v.
Michigan, 188 U. S. 505,
188 U. S. 508.
It was therefore competent for the state to prescribe the procedure
and conditions, and the cases cited by appellant are not
apposite.
Order affirmed.