Cline v. Ballard

Undercofler, Justice.

The defendant was indicted for the offense of armed robbery. Counsel was appointed for him and he was tried in the Superior Court of Bibb County. The jury found him guilty of the offense of robbery by intimidation and sentenced him to seven years in prison. He filed an application for the writ of habeas corpus on the basis that he was denied effective assistance of counsel because no objection was made to his wife testifying against him and to his ten-year old daughter’s testimony, (2) that the defendant was not properly sentenced in the trial court, and (3) that he was denied the right to call a certain defense witness. After hearing evidence, the trial court remanded the applicant to the custody of the respondent. The appeal is from this judgment. Held:

Submitted March 8, 1971 Decided April 8, 1971. Walter N. Cline, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William R. Childers, Jr., Assistant Attorneys General, for appellee.

1. Georgia Laws 1957, p. 53, provides: "Husband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other. . .” The evidence shows that the wife of the applicant was apprised of this law and agreed to testify against her husband. The evidence also shows that the ten-year-old daughter was found to be a competent witness. See Edwards v. State, 226 Ga. 811 (3) (177 SE2d 668).

2. Counsel who was appointed to defend the applicant on the trial of his case testified that as a matter of trial strategy, he did not call the defense witness.

3. The record in this case shows that the jury sentenced the applicant to seven years in prison. The trial court orally pronounced the sentence and reduced it to writing.

4. There is no merit in the contentions of the applicant.

Judgment affirmed.

All the Justices concur.