1. Habeas corpus can be maintained only for defects such as render the judgment of conviction void, and can not be made a substitute for appeal, writ of error, or other remedial procedure for the correction of errors and irregularities; nor can it be used as a second appeal or writ of error for such purpose.
2. An applicant is not at liberty to prove, under a petition for habeas corpus, that a confession was in fact involuntary. The judgment of conviction forecloses that question, except in proceedings provided for the review and correction of errors. Wilcoxon v. Aldredge, 192 Ga. 634, 638 (15 S.E.2d 873, 146 A.L.R. 365).
3. No failure to afford benefit of counsel or other due process in a trial for murder appears in this record.
No. 15854. JUNE 12, 1947. REHEARING DENIED JULY 11, 1947. L. H. Morris was indicated in Bibb County for the murder of his wife. After a motion to change the venue had been granted, he was convicted in the Superior Court of Houston County of that offense. There was no recommendation of mercy, and in accordance with the Code, § 26-1302, he was given the death penalty. The judgment and sentence of the lower court were affirmed by this court by unanimous decision on February 19, 1946, and a motion for rehearing was denied. Morris v. State, 200 Ga. 471. He was returned to the common jail of Bibb County to be confined under the sentence until the time for his execution. Pending his incarceration, he presented to the judge of the superior court of that county a petition for habeas corpus, alleging that his detention was illegal. The sheriff and jailer were named defendants. His conviction, as he alleged, was secured in violation of his rights under the fifth, sixth, and fourteenth amendments to the Constitution of the United States, and his rights under certain provisions of the Constitution of this State, and being thus illegally obtained, the judgment and sentence against him were void. On the return day of the writ the sheriff produced the applicant before the judge. The respondents denied that the applicant was being illegally detained by them, and that he was convicted because of the denial of any of his constitutional rights; and alleged that all of the contentions now made by the applicant had been finally adjudicated adversely to him by a court of competent jurisdiction. The court overruled a motion to quash the writ, and heard evidence both in support of and against it. *Page 525
The applicant testified in his own behalf in substance: He was arrested on Sunday, February 18, 1945, following the death of his wife on Friday night, and placed in the common jail of Bibb County at Macon, Georgia, and was held incommunicado until after he signed a "false statement" on Friday, February 23, 1945. During that time he made repeated requests to see his relatives and to confer with counsel, which requests were denied. During the period he was so held, the sheriff, jailer, and two Macon police officers named Ong and O'Cain questioned him frequently about the case, both during the day and night, and often for long periods of time. He was told by Ong and O'Cain that his sentence would be much lighter if he confessed. They told him about the electric chair and how he would fry when electrocuted. They (Ong and O'Cain) threatened to charge his small son, who had purchased some strychnine for the deceased, with murdering his mother and to place him in jail unless he confessed. He finally signed a statement, which was untrue, because he was worried, tired, unable to see his relatives or to confer with counsel, and to prevent the arrest and imprisonment of his son. He further testified that, while the sheriff, Peacock, and his jailer, Robertson, questioned him at different times, neither of them threatened him or his son, nor promised any help to him if he made a confession; that he was represented on his trial by attorneys Woods, McCowan and Bloodworth; that Woods was employed by his relatives and accepted by him, and that McCowan with Woods represented him during the entire trial and made arguments to the jury; that Bloodworth was present and sat with him and his other attorneys during the first day of the trial; that Woods told him that McCowan had been called into the case to help him, and that he (applicant) accepted him; and that he was innocent of the offense charged.
Grady Gillon, a member of the Macon bar, testified: that Woods conferred with him on Tuesday after the applicant was placed in jail with a view of associating him in the defense of Morris; that he undertook to confer with Morris, who was then confined in jail, but was advised by Garrett, the solicitor-general, that he could not see him until the officers completed their investigation; that Garrett later during the same week telephoned him that he could then see Morris, but on learning that a confession had been signed *Page 526 by Morris he declined employment, and had nothing further to do with the case.
Several relatives testified that they had tried to see and confer with the applicant during the time he was held incommunicado, but were prevented by the officers who had him in custody. A number of witnesses were also permitted to testify to facts tending to show the applicant's innocence of the offense charged, and to support his contention that the decedent's death was suicidal.
The respondents tendered in evidence the first four grounds of an amended motion for new trial filed by the applicant after his conviction in Houston Superior Court, which grounds were approved October 13, 1945, and later overruled by the trial judge. In these grounds the applicant sought a new trial, because: (1) the court admitted in evidence on the trial of his case a motion which he had made for a change of venue; (2) the court admitted in evidence an alleged confession made by the applicant on February 23, 1945, admitting the murder of his wife; (3) the court permitted E. J. Peacock, Sheriff of Bibb County, to testify concerning an alleged confession made to him by the applicant; and (4) the court permitted W. L. Robertson, Jailer of Bibb County, to testify concerning an alleged confession made to him by the applicant. While the respondents did not formally introduce the evidence against the applicant, which had been given on the trial of the case in Houston Superior Court, they requested the trial judge to take judicial cognizance of it. In passing upon the issue here made, the court considered the evidence adduced upon the hearing and, as recited in the judgment, took judicial cognizance of: (1) the testimony given by Officers Peacock, Robertson, and Ong, on the trial of the applicant in Houston Superior Court, and the sufficiency of their evidence to show prima facie that a confession alleged to have been made by the applicant was freely and voluntarily made, and the statement, made by the accused on his trial, to the jury that it was made under coercion, as set out in the petition for habeas corpus; (2) the charge given to the jury on the trial of the applicant, the issue as to whether or not the confession was freely and voluntarily made by the accused having been duly submitted to the jury for determination, and the verdict finding the accused guilty of murder determining that issue in favor of the State's contention that he had freely and voluntarily *Page 527 admitted his guilt of the offense charged; and (3) an amended motion for new trial, filed by the applicant after his conviction in Houston Superior Court, the grounds contained therein alleging that it was error for the court to allow any evidence of a confession to be submitted to the jury, because no confession had, in fact, been freely and voluntarily made by the accused.
The court dismissed the writ and remanded the applicant to the custody of the respondents, and the exception here is to that judgment. 1. The instant case first came to this court on an exception to a judgment overruling an amended motion for new trial. We affirmed that judgment in Morris v. State, 200 Ga. 471 (37 S.E.2d 345). It now comes to us on an exception to a judgment dismissing the writ of habeas corpus and remanding the applicant to the custody of the respondents. It is, of course, fundamental that a writ of habeas corpus sought by one convicted of a crime, who seeks thereby to obtain his liberty, can be maintained only for defects such as render the judgment of conviction void, and can not be made a substitute for appeal, writ of error, or other remedial procedure for the correction of errors and irregularities; not can it be used as a second appeal or writ of error for such purpose. It is an appropriate remedy only when the court was without jurisdiction to render the judgment or sentence under which the applicant is being restrained, so that such judgment or sentence is not merely erroneous, but is absolutely void. Kinman v. Clark, 185 Ga. 328, 329 (1) (195 S.E. 166); Aldredge v. Williams, 188 Ga. 607 (4 S.E.2d 469);Sanders v. Aldredge, 189 Ga. 69 (5 S.E.2d 371);Wilcoxon v. Aldredge, 192 Ga. 634 (supra); Ex parte Bigelow, 113 U.S. 328 (5 Sup. Ct. 542, 28 L. ed. 1005); In re Swan, 150 U.S. 637 (2) (14 Sup. Ct. 225, 37 L. ed. 1207); Frankv. Mangum, 237 U.S. 309 (35 Sup. Ct. 582, 59 L. ed. 969). "It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. . . The principle *Page 528 is as applicable to the decision of criminal courts as to those of civil jurisdiction." Frank v. Mangum, supra, p. 333.
2. One complaint made in the petition is that a confession, alleged to have been made by the applicant, was not admissible in evidence, because it was in fact obtained by duress and under circumstances which violated his rights under the Constitutions of this State and of the United States, which provide that the defendant in a criminal case shall not be required to give evidence against himself. This does not present a ground for habeas corpus, for the reason that an objection of this kind should have been presented in a proper way at the trial, and upon failure to do so, as in the case, it is to be considered as waived. An applicant is not at liberty to prove, under a petition for habeas corpus, that a confession was in fact involuntary. The judgment of conviction forecloses that question, except in proceedings provided for the review and correction of errors.Wilcoxon v. Aldredge, supra. It is settled that constitutional question may be waived by failure to comply with reasonable procedural requirements. Frank v. Mangum, supra;Myers v. Whittle, 171 Ga. 509 (156 S.E. 120); In re Wood,140 U.S. 278 (11 Sup. Ct. 738, 35 L. ed. 505).
3. The remaining complaint is that the applicant was deprived of the benefit of counsel, which is guaranteed to him by the Constitutions of this State and of the United States. Under our Constitution (art. 1, sec. 1, par. 5; Code, § 2-105), "every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel;" and a denial of counsel likewise constitutes a violation of the fourteenth amendment to the Federal Constitution. Powell v. Alabama,287 U.S. 45 (53 Sup. Ct. 55, 77 L. ed. 158, 84 A.L.R. 527). As to what constitutes a denial of counsel within the meaning of our State Constitution, whether and when such a denial may constitute also a violation of the Federal fourteenth amendment as to due process (Code, § 1-815), and whether and when this would render the judgment void, so as to be inserted in a petition for habeas corpus, see Wilcoxon v. Aldredge, supra; Johnson v. Zerbst,304 U.S. 458, 467 (58 Sup. Ct. 1019, 82 L. ed 1461, 146 A.L.R. 357); In re Swan, 150 U.S. 637, 648 (supra); Powell v. Alabama, 287 U.S. 45, 60 (supra); Ex parte Nielsen, 131 U.S. 176 (9 Sup. Ct. 672, 33 L. ed. 118); In re Wood, 140 U.S. 278 (11 Sup. Ct. 738, 35 L. ed. 505); In re *Page 529 Moran, 203 U.S. 96 (27 Sup. Ct. 25, 51 L. ed. 105); Ex parte McClusky, 40 Fed. 71; Wells v. Pridgen, 154 Ga. 397, 399 (114 S.E. 355), and cit.; Delk v. State, 99 Ga. 667, 671 (26 S.E. 752); Charlon v. State, 106 Ga. 400 (32 S.E. 347); Fleming v. Lowry, 173 Ga. 894 (1, 4) (162 S.E. 144);Sanders v. Paschal, 186 Ga. 837 (199 S.E. 153); Peebles v. Mangum, 142 Ga. 699 (83 S.E. 522); Stephens v.Henderson, 120 Ga. 218, 220 (47 S.E. 498); Frank v.State, 142 Ga. 741 (83 S.E. 645, L.R.A. 1915D, 817); Statev. Dunn, 159 N.C. 470 (74 S.E. 1014); Fambles v. State,97 Ga. 625, 628 (25 S.E. 365). In the Wilcoxon case, supra, this court said: "The deprivation of counsel is such a fundamental and radical error that it operates to render the trial illegal and void. It follows that the charge that the applicant was denied the benefit of counsel, if meritorious, constituted a ground for issuance of the writ of habeas corpus; and the order remanding the applicant to custody, which was clearly based on the ground that none of the complaints were appropriate to a petition for habeas corpus, but simply called for a review of alleged errors in the trial, was to this extent erroneous."
Since it has now become the settled law of this State that denial of counsel within the meaning of the Constitution renders a judgment of conviction void, we have carefully examined the record of the instant case to see what the facts are with respect thereto. After doing this, we have become convinced that there has been no such denial of this right as to render the judgment illegal and void under the Constitution of this State and the Federal Constitution. It appears from the record that the applicant was represented on his trial by three practicing attorneys of this State, who had been employed by members of his family and accepted by him. No complaint was made prior to the trial that there attorneys had not been afforded ample opportunity to consult and advise with the accused in the preparation of his case, and no attack is now made upon the competency of two of these attorneys. It is argued here, and the applicant testified to the effect, that Mr. Woods, the first attorney employed by the applicant's father, was incompetent. However, when this case was here on a prior writ of error he appeared in this court and made an oral argument for the applicant. The applicant's contention now is not based solely on the ground that the attorneys who actually represented him on *Page 530 the trial of his case were in fact incompetent, but is predicated also upon the ground that he was held incommunicado for five days, and not allowed to consult with counsel until after he had signed a false statement. It appears that Mr. Woods, one of the attorneys for applicant, conferred with Mr. Grady Gillon, a member of the Macon bar, with a view of associating him in the defense of the applicant; that Mr. Gillon, with Mr. Woods, desired to confer with the accused for the purpose of completing arrangements for employment; and that the solicitor-general told them they could not see him until the officers had completed their investigation of the case. Mr. Gillon told the solicitor-general that he would take the matter up with the judge and obtain an order, but no application for an order directing the allowance of an interview was ever presented. He was never employed. A prisoner should always be accorded the privilege of conferring freely with counsel at all reasonable times; but, upon application of the principles announced in the above cases, and in Andrews v. State, 196 Ga. 84 (26 S.E.2d 263), we are not prepared to say that the facts of this case show such a denial of the privilege and benefit of counsel, within the meaning of the Constitutions of this State and of the United States, as to render the judgment void. A person accused of crime has the right to communicate with and to consult counsel before trial, and various remedies are available when the right of consultation is denied. Mandamus, habeas corpus, order of court directing the allowance of an interview, mandatory injunction, and motion for continuance have been recognized as proper in various jurisdictions where the accused was not permitted to communicate with counsel before trial. 14 Am. Jur. 885, § 171. The record shows that none of these remedies was resorted to. We think that the facts here do not show such a denial of the privilege and benefit of counsel as to render the judgment illegal and void, but that they show a violation only of the right to discuss with an attorney the terms of a possible contract of employment.
Accordingly, the judge did not err in remanding the applicant to custody.
Judgment affirmed. All the Justices concur, except Wyatt andHead, JJ., who dissent from division 3 of the opinion, and fromthe judgment of affirmance. *Page 531