1. A stay of execution is not based on any inherent right of one who has been convicted and sentenced to suffer death for the offense of murder, and such person is not entitled by any provision of law in this State to any inquisition as to alleged insanity after sentence. Code, § 27-2601. Such investigation as may be made under the Code, § 27-2602, by a commission of physicians as may, in his discretion, be appointed by the Governor, arises out of a sense of public propriety and decency that one, though legally convicted and sentenced, should not suffer death during his mental incapacity to realize his situation and perhaps invoke some remedial measure in his own behalf. The failure to accord such a person a judicial hearing and notice does not deprive him of due process of law under the State and Federal Constitutions.
2. The petition for habeas corpus showing that the petitioner had been convicted and sentenced to death for murder, and that the question of his alleged insanity after conviction and sentence had been investigated by a commission of three physicians chosen by the Governor under the provisions of the Code, § 27-2602, and that he had been found sane, but alleging that he was being detained by the Warden of the State Penitentiary for execution of his sentence in violation of the due-process clauses of the State and Federal Constitutions, in that he had not been accorded a judicial determination of his alleged insanity, did not set forth a cause of action, and the trial judge did not err in sustaining the general demurrer of the respondent and in dismissing the action and remanding the petitioner to the custody of the respondent.
No. 16537. MARCH 14, 1949. REHEARING DENIED MARCH 28, 1949.
STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.
George W. Solesbee filed in the Superior Court of Tattnall County, Georgia, on November 18, 1948, a habeas corpus petition against R. P. Balkcom Jr., alleging the following: The petitioner is incarcerated in the State penitentiary at Reidsville, Georgia, where he has been ordered put to death by electrocution on November 20, 1948, by R. P. Balkcom Jr., the warden of the said penitentiary, in pursuance of an order of the
Honorable W. R. Smith, Judge of the Superior Courts of the Alapaha Circuit, presiding at Homerville, Clinch County, Georgia, on November 5, 1948. (It was alleged that the said order was without authority of law and in violation of named constitutional rights of the petitioner because entered during a respite granted by the Governor of the State suspending execution of a previous sentence until November 8, 1948, but it is admitted in this court that the question has become moot by reason of the fact that the sentence was not executed because of the filing of the habeas corpus proceeding and the order of the court restraining the said warden from proceeding with the execution until the further order of the court, and, accordingly, it is unnecessary to state such allegations.) It was alleged that the prisoner was insane and can not be executed, and that, since there is no provision of law whereby the question of his sanity or insanity can be judicially determined, no sentence of death can be legally imposed upon him. "The only provision of law in the State of Georgia with reference to the manner in which one claims to have become insane subsequent to the entrance of a sentence of death is § 27-2602 of the Code of the State of Georgia, which is: `27-2602. (1074 P. C.) Disposition of insane convicts. Cost of investigation. — Upon satisfactory evidence being offered to the Governor that the person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, within his discretion, have said person examined by such expert physicians as the Governor may choose, and said physicians shall report to the Governor the result of their investigations; and the Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored, as determined by laws now in force. The cost of the investigation shall be paid by the Governor out of the contingent fund. (Acts 1903, p. 77.)'" The Code, § 27-2601, expressly prohibits anyone from having "an inquisition or trial to determine his sanity," the said section being as follows: "No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity." The execute the petitioner without any judicial proceeding whereby and wherein he would be entitled to
produce evidence as to his sanity and to be represented at a hearing for that purpose by counsel would be to deprive him of his life without notice or hearing and without any opportunity to obtain an original court hearing and adjudication of his sanity or to review the finding of any doctors' conclusions with reference thereto. Application was made to the Governor under the above section [§ 27-2602?] and three physicians were appointed to examine the petitioner, and they reported him sane, but the petitioner alleges that any inquisition which the Governor might set up under this section would be a mere matter of grace, and no order "passed as a matter of grace and not because of any provision of law would be in conflict with due process clause of the Constitution of the State and of the Fourteenth Amendment of the Constitution of the United States" and therefore void, and such has been declared to be the law in numerous instances.
It was prayed that the court grant the writ of habeas corpus requiring R. B. Balkcom Jr., Warden of the State Penitentiary at Reidsville, to produce the body of the petitioner on a date and time to be fixed by the court in order to determine the legality of his incarceration and the legality of the authority under which the said warden purports to act under the said sentence, and also that the said warden be restrained from executing the petitioner until a hearing can be had on the petition.
The court entered an order granting the prayers of the petition, setting the hearing for November 27, 1948, at 11:30 a. m. at the courthouse in Ludowici, Long County, Georgia.
On the date set the warden produced the body of the petitioner and demurred to the petition on the following grounds: 1. No cause of action is set out in the petition. 2. (Involving a question which has admittedly become moot, since the time set for the execution of the petitioner in the sentence of November 5, 1948, has passed, and a new date for his execution would have to be set). 3. There is no conflict between the two Code sections referred to in the petition. The method provided by law for inquiring into the sanity of a person already under sentence of death is not in violation of the Constitution of this State or of the United States, and the method provided for does not deprive a person of his life without due process of law.
The court sustained the demurrer and dismissed the action, on the ground that the Code, § 27-2602, affords due process of law to the petitioner, which redress is shown by the petition to have been afforded him, and the petitioner was remanded to the custody of the warden.
The exception here is to that judgment.
The prisoner is shown by the petition to be under a sentence of death after conviction of murder, although the original date for electrocution was postponed by a respite granted by the Governor of the State. The life of the prisoner is by the conviction and sentence absolutely forfeited, and if execution takes place it will be in virtue of the original sentence. Baughn v. State,100 Ga. 554, 559 (28 S.E. 68, 38 L.R.A. 577); Mallory v.Chapman, 158 Ga. 228, 231 (122 S.E. 884); Gore v.Humphries, 163 Ga. 106, 111 (135 S.E. 481); Smith v.Henderson, 190 Ga. 886 (2) (10 S.E.2d 921); Fowler v.Grimes, 198 Ga. 84, 94 (31 S.E.2d 174).
The law affirmatively denies such person any right to demand an inquisition as to his insanity in such circumstances, it being declared by the Code, § 27-2601, that "No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity." Speaking of the act from which this section was codified (Ga. L. 1903, p. 77), it was said in Lee v. State, 118 Ga. 764, 770 (45 S.E. 628): "Save as to pending cases, the connection of the courts with proceedings of this nature has thus been ended. This seems to be now the declared policy of the State, after experience had under the act of 1897." A stay of execution is not based on any inherent right of the prisoner. 14 Am. Jur. 804, § 48. Any investigation into his alleged insanity is in no sense a trial of the offense for which he was indicted and convicted, but arises out of a sense of public propriety and decency that one, though legally convicted and sentenced, should not suffer death during his mental incapacity to realize his situation and perhaps invoke some remedial measure
in his own behalf. Spann v. State, 47 Ga. 549; Carr v.State, 98 Ga. 89 (27 S.E. 148); Baughn v. State, supra; 14 Am. Jur. 806, § 51. In keeping with this sense of prosperity, it is provided in the Code, § 27-2602, that the Governor may, in his discretion, have such person examined by such expert physicians as he may choose, and if he shall determine from the report of the physicians that the accused is insane, he shall have the power of committing him to the Milledgeville State Hospital until the restoration of his sanity. Under the Code, § 27-2603, providing for the reception into the State hospital of the prisoner, if found insane, it is stated that all the provisions of the law relating to insane persons under sentence of imprisonment in the penitentiary shall apply to such insane person as far as applicable. It is admitted in the petition for habeas corpus that such an examination as above referred to was made in the present case, and that the prisoner was found sane; but it is contended that such consideration shown the petitioner was merely an act of grace by the Governor and was not a substantial equivalent of due process of law, which the petitioner is entitled to have granted him under some provision of law whereby his alleged insanity will be investigated through mandatory judicial procedure, by notice and hearing, rather than by some commission of physicians which the Governor may in his discretion appoint. The procedure authorized for investigating the alleged insanity of the condemnee is, as properly termed by counsel for the petitioner, an act of grace, which, as herein before shown, arises solely out of public propriety and decency. However, in the absence of statute, the prisoner has no right, even where an investigation is made, to have the question of his alleged insanity tried by a jury. 24 C. J. S. 202, § 1619; 14 Am.Jur. 807, § 53. Cases are cited by counsel to the effect that one entitled to notice and hearing is deprived of due process of law when such benefits are not afforded him. These are clearly distinguishable, in that here no right exists in the prisoner to any inquisition or trial. The due-process clause of the State and Federal Constitutions has no reference to mere concessions or privileges which may be bestowed or withheld by the State at will. Schlesinger v. Atlanta, 161 Ga. 148 (129 S.E. 861);McKown v. Atlanta, 184 Ga. 221, 222 (3, 4)
(190 S.E. 571). In Baughn v. State, supra, this court had under consideration § 1047 of the Code of 1895. That section provided for the summoning by the sheriff and ordinary of a jury to inquire into the alleged insanity of one who had been sentenced to death after conviction. It was held by this court that a refusal of a judge to enter upon a judicial investigation, as contended for by a friend on behalf of the prisoner, was not a denial of due process of law. In Nobles v. Georgia, 168 U.S. 398
(18 Sup. Ct. 87, 42 L. ed. 515), in affirming the judgment of this court, it was said: "Without analysis of the contention [that the condemnee was entitled to trial by jury in a judicial proceeding], it might well suffice to demonstrate its obvious unsoundness by pointing to the absurd conclusion which would result from its establishment. If it were true that at common law a suggestion of insanity after sentence created on the part of a convict an absolute right to a trial of this issue by a jury and a judge, then (as a finding that insanity did not exist at one time would not be the thing adjudged as to its non-existence at another) it would be wholly at the will of a convict to suffer any punishment whatever, for the necessity of his doing so would depend solely upon his fecundity in making suggestion after suggestion of insanity, to be followed by trial upon trial. . . The question here is, what, after conviction and sentence, was the method by which the existence of insanity in the convict was to be ascertained when a suggestion of such insanity was made." After quoting from certain authorities, the court concluded as follows: "It being demonstrated by reason and authority that at common law a suggestion made after verdict and sentence of insanity did not give rise to an absolute right on the part of a convict to have such issue tried before the court and to a jury, but addressed itself to the discretion of the judge, it follows that the manner in which such question should be determined waspurely a matter of legislative regulation. It was, therefore, asubject within the control of the State of Georgia." (Italics ours.)
It follows that, having no right inherently or by statute in this State to a judicial investigation as to the alleged insanity of the prisoner, and no contention being made that he was not legally tried, convicted and sentenced, the prisoner is not being denied
due process of law in being detained in the custody of the Warden of the State Penitentiary for electrocution on a new date to be set by reason of the respite which was granted by the Governor. Accordingly, the petition did not set forth a cause of action, and the trial judge did not err in sustaining the general demurrer of the respondent and in dismissing the action and remanding the prisoner to the custody of the respondent.
The cases cited by counsel for the petitioner have been carefully examined, but require no ruling different from that here made. Counsel particularly discuss Phyle v. Duffy, decided by the United States Supreme Court on June 7, 1948, and reported in advance sheets of 92 L. ed. 1107 and advance sheets of Supreme Court Reporter, Vol. 68, p. 1131. The opinion in that case, while making no ruling as to whether or not the condemned person had been denied due process of law, yet contains language which strongly indicates that the California law there involved must afford the condemned person a right to demand and obtain a judicial determination as to his sanity. It is provided in § 1367 of the Penal Code of California that "A person can not be tried, adjudged to punishment, or punished for a public offense, while he is insane," and thereby an absolute right is conferred upon the condemned person. To protect this right the due-process clause of the Constitution may be invoked. But, as pointed out above, the State of Georgia not only does not confer such a right upon a condemned person, but expressly declares that he has no such right (Code, § 27-2601), and gives the State the power to postpone his execution only when he has been found insane by the procedure prescribed in the Code, § 27-2602. Thus is demonstrated the inapplicability to the present case of the rulings and intimations of the United States Supreme Court in the Phyle case.
Judgment affirmed. All the Justices concur.