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PORCH v. FOSTER, Sheriff.
Habeas corpus. Before Judge Hendrix. Fulton Superior Court. December 23, 1952.
HEAD, Justice.
The constitutional guaranty of "benefit of counsel" was not denied the defendant under the facts of this case.
Rogers Henry Porch, at the September term, 1950, of Pickens Superior Court, was convicted of rape. His motion for new trial was overruled, and this judgment was affirmed by this court. Porch v. State, 207 Ga. 645 (63 S. E. 2d, 902): In December, 1952, he filed a petition for habeas corpus in the Superior Court of Fulton County, in which he charged that he was denied the benefit of effective counsel upon his trial, in violation of the Fourteenth Amendment to the Constitution of the United States (Constitution of the United States, article 14, section 1, Code, 1-815), and in violation of the Constitution of the State of Georgia, article 1, section 1, paragraphs 2, 3, 4, and 5 (Code, Ann., 2-102, 2-103, 2-104, 2-105).
The judge of the superior court in his order remanding the petitioner (hereinafter called the defendant) to the custody of the respondent recited in part: "After hearing argument of counsel as to the sufficiency of the grounds on which he alleges he [the defendant] is being illegally restrained of his liberty by the respondent, and after offering to prove each and every allegation he made in his petition," and it appearing that the respondent is holding the defendant for safe-keeping for the Sheriff of Pickens County, Georgia, under authority of a certified copy of a death sentence in case No. 2036, Pickens Superior Court, "it is considered, ordered and adjudged by the court that the grounds alleged by the petitioner, even if proven as true and correct, are not sufficient for this court to grant the relief prayed in the petition for habeas corpus." To this judgment the defendant excepted.
1. The contentions made by the defendant in his application for the writ of habeas corpus were duly and fully set forth in grounds 4 and 5 of his amended motion for new trial, and these contentions were necessarily ruled upon adversely to the defendant on the former appearance of his case in this court. See Porch v. State, 207 Ga. 645 (1) (63 S. E. 2d, 902).
Counsel for the defendant insist that the provisions of the State and Federal Constitutions set forth in his writ of habeas corpus were violated on the trial of the defendant, in that they were allowed only fifteen or twenty minutes to confer with him before the trial.
This court has many times held that the constitutional guaranty of "benefit of counsel" amounts to nothing, if counsel for the accused are not allowed sufficient time to prepare his defense. See Jones v. State, 65 Ga. 506; Blackman v. State, 76 Ga. 288; Sheppard v. State, 165 Ga. 460 (141 S. E. 196); and Edwards v. State, 204 Ga. 384 (50 S. E. 2d, 10), where a number of the previous decisions of this court are cited.
If, in this case, counsel had only the interview of fifteen or twenty minutes, the complaint as to insufficient time would present an entirely different question. As shown by the statement of facts in Porch v. State, supra, his present counsel conferred with the defendant on September 21, and one of his attorneys was in Jasper (the venue of the alleged crime) on September 23, "working in regard to this case."
At the time the motion for continuance was made, there was no contention by counsel as to the absence of any witness favorable to the defendant (Code, 81-1410), and there was no showing by counsel that they had used "due diligence" (Code, 81-1416). On the former appearance of the defendant's case in this court, no attack was made upon his confession of guilt. No fact is alleged to have been discovered in the more than two years which intervened since his original trial which would even tend to impeach his confession of guilt. On the trial of his case, the defendant undertook to cast some reflection upon the credibility of his confession, but there was nothing to show that the confession was not freely and voluntarily made without hope of reward or fear of punishment. The defendant's statement upon his trial placed him at the scene of the alleged crime, and in certain essential respects corroborated the testimony of the prosecutrix and the witnesses for the State. Upon the trial of his case, counsel for the defendant subjected the State's witnesses to a thorough and sifting cross-examination, which did not result in the discovery of any fact favorable to the defendant.
Under the record in this case, and the record in its former appearance before this court, it is not shown that the defendant was deprived of the benefit of counsel within the construction of this constitutional requirement under prior decisions of this court.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
Paul Webb, Solicitor-General, Wm. E. Spence and Charlie O. Murphy, contra.
Joseph S. Crespi, for plaintiff in error.
Saturday May 23 04:22 EDT

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