John W. Duncan filed a habeas corpus petition seeking his release under a conviction for possessing burglary tools. On the trial of the issue thus made it was shown that the petitioner and another were jointly indicted, that the co-indictee’s mother employed a Kentucky attorney to represent her son and that such attorney employed a Georgia attorney to aid him in the trial of the case, that such counsel represented the petitioner only incidentally and that both defendants were together when arrested and the defense of one inured to the benefit of the other, although a proper defense would have required a motion for severance since the petitioner had no criminal record and the co-indictee did. There was also evidence that the petitioner was indigent, was told prior to the trial that an attorney would be appointed to represent him but none was. The trial court granted the petition for habeas corpus and remanded the prisoner to the custody of the Sheriff of Fulton County where he had been indicted for disposition of the charges against him. Held:
The judgment of the trial court finding the prisoner was denied counsel being supported by the evidence the judgment must be affirmed. See Brown v. Smith, 223 Ga. 433 (156 SE2d 28), and citations.
Judgment affirmed.
All the Justices concur.