Brown v. Smith

223 Ga. 433 (1967)

156 S.E.2d 28

BROWN, Warden v. SMITH.

24140.

Supreme Court of Georgia.

Argued June 12, 1967.

Decided June 22, 1967.

Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Carter A. Setliff, Marion O. Gordon, Assistant Attorneys General, Mathew Robins, Deputy Assistant Attorney General, Joel C. Williams, Jr., for appellant.

George W. Stacy, for appellee.

NICHOLS, Justice.

W. Eugene Smith, a prisoner in the Decatur County Prison Branch of the State Penitentiary of Georgia, filed a habeas corpus petition in which he alleged that his imprisonment was illegal because he was not represented by *434 counsel anytime between his arrest and sentence for burglary, nor did he make an intelligent waiver of such right. On the trial of the issue thus made the prisoner, his brother, wife and aunt testified there was no attorney present representing him although the indictments were signed by an attorney as representing the prisoner and the sentence stated that the prisoner was represented by such named counsel. The solicitor general testified by interrogatories that the prisoner was represented by such attorney. The trial court found for the prisoner and the appeal is from that judgment. Held:

1. It is well settled that where the trial judge is a trior of facts and the evidence is conflicting upon the issue of fact involved, his decision will not be controlled where there is any competent evidence to support his findings. See Walling v. Harris, 210 Ga. 97 (1) (78 SE2d 7), and citations.

2. The evidence, while in sharp conflict on the issue of whether the prisoner was denied counsel, authorized the finding of the trial judge and will not be controlled. See also Balkcom v. Vickers, 220 Ga. 345 (138 SE2d 868); and Balkcom v. Williams, 220 Ga. 359 (138 SE2d 873).

3. The effect of granting the writ of habeas corpus was not to exonerate the prisoner of the charges against him but merely to remand him to custody for the purpose of affording him a legal trial. Fair v. Balkcom, 216 Ga. 721, 728 (119 SE2d 691); Patton v. State, 111 Ga. App. 853 (143 SE2d 518).

Judgment affirmed. All the Justices concur.