Having been convicted in a Georgia state court of involuntary manslaughter and his conviction having been affirmed by the Court of Appeals of Georgia, petitioner moved in the trial court for a new trial on the ground of newly discovered evidence. Denial of this motion by the trial court was affirmed by the Court of Appeals on adequate state grounds. Petitioner then moved in the Court of Appeals for a rehearing on that decision and, for the first time, attempted to claim a violation of his federal constitutional rights. This motion was denied by the Court of Appeals without opinion and the Supreme Court of Georgia denied certiorari without opinion. Thereafter, petitioner obtained from the Court of Appeals an amendment of the record purporting to show that, on the motion for rehearing, it had considered the federal constitutional question and decided it adversely to petitioner. Without seeking a review of this amending order in the Supreme Court of Georgia, petitioner applied to this Court for certiorari, which was granted. Held: It now appearing that the decision of the Supreme Court of Georgia might have rested on an adequate state ground, the writ of certiorari was improvidently granted, and the case is dismissed. Pp. 542-548.
A writ of certiorari having been improvidently granted in this case, 342 U.S. 940 , the case is dismissed, p. 548.
MR. JUSTICE MINTON delivered the opinion of the Court.
Petitioner was convicted of voluntary manslaughter for the fatal shooting of an eighteen-year-old woman in an altercation growing out of a business transaction. A second woman was wounded in the affray. At his trial, petitioner claimed that he killed the deceased in self-defense. The jury obviously did not believe him or it would not have found him guilty of voluntary manslaughter. He appealed to the Court of Appeals of Georgia which affirmed the conviction of July 12, 1950. Stembridge v. State, 82 Ga. App. 214, 60 S. E. 2d 491. Certiorari to the Supreme Court of Georgia was denied.
Petitioner thereafter filed in the trial court what he called an "Extraordinary Motion for New Trial." This motion alleged that after the appellate proceedings above mentioned, petitioner for the first time, to wit, September, 1950, discovered new evidence which, had he known of and been able to use, would have resulted in his acquittal. He supported the motion with affidavits of ten of the jurors in the case stating that had this evidence been before them, they "would have never agreed to any verdict except one of not guilty . . . ."
The newly discovered evidence consisted of a conflict between a written statement made by Mrs. Mary Harrison, [343 U.S. 541, 543] the other woman who was shot in the affray, and her testimony at the trial. Petitioner could not contend that he was unaware of the existence of this statement because the police investigator who recorded it was cross-examined at length about the statement and its contents by petitioner's counsel at the trial. Petitioner claims only that he did not know of the conflict between the statement and Mrs. Harrison's testimony at the trial until after the trial was over. The statement was made by Mrs. Harrison in the hospital, shortly after she was shot. It is not sworn to. At least, there is no jurat exhibited as a part thereof. This statement, often referred to as a dying declaration, and the copy thereof remained at all times in the hands of the police. Since Mrs. Harrison did not die, the State could not use the statement as a dying declaration. Ga. Code, 38-307 (1933).
The motion alleges that at petitioner's trial, Mrs. Harrison testified that he "did go into the third room of the house and that he did shoot Emma Johnekin after he had already wounded her in the front of the house, and after she had seated herself on a trunk in this rear room." The house where the shooting occurred consisted of three rooms, in line from front to rear, and a kitchen. The statement made by Mrs. Harrison while in the hospital, which is allegedly in conflict with her testimony, was "and Emma [deceased] never got out of the front bed room until after the men [Stembridge and Terry] had already gone."
This motion for a new trial based on newly discovered evidence was denied by the trial court. The Court of Appeals affirmed on the ground that the evidence was impeaching only and under the Georgia Code, 70-204, was not the basis for the granting of a new trial. Stembridge v. State, 84 Ga. App. 413, 415-416, 65 S. E. 2d 819, 821. This judgment was entered June 5, 1951. [343 U.S. 541, 544]
Petitioner then filed a motion for rehearing in the Court of Appeals and for the first time attempted to raise the question of his federal constitutional rights under the Fourteenth Amendment. He contended that he had been denied equal protection and due process in that the State had used Mrs. Harrison's testimony to obtain his conviction with knowledge that it was perjured. The motion for rehearing was denied July 17, 1951, in these words: "Upon consideration of the motion for a rehearing filed in this case, it is ordered that it be hereby denied." On September 12, 1951, the Supreme Court of Georgia denied certiorari without opinion. On September 17, 1951, the Court of Appeals, at petitioner's request, stayed the remittitur for ninety days to enable him to apply to this Court for certiorari.
On October 22, 1951, petitioner sought and obtained from the Court of Appeals of Georgia an amendment of the record in the following words:
First, since the Supreme Court of Georgia, which was the highest court of the state in which a decision could be had in this case, was not asked to pass upon and did not pass upon the purported amending order, we have no occasion to consider its effect.
Secondly, at the time the petition for certiorari was denied by the Supreme Court of Georgia, there appeared in the petition the following recital:
At this stage, the Supreme Court of Georgia could have denied certiorari on adequate state grounds. Where the highest court of the state delivers no opinion and it appears that the judgment might have rested upon a nonfederal ground, this Court will not take jurisdiction to review the judgment. Hedgebeth v. North Carolina, 334 U.S. 806 ; Woods v. Nierstheimer, 328 U.S. 211 ; White v. Ragen, 324 U.S. 760 ; McGoldrick v. Gulf Oil Corp., 309 U.S. 2 ; Woolsey v. Best, 299 U.S. 1 ; Lynch v. New York ex rel. Pierson, 293 U.S. 52 ; Cuyahoga Power Co. v. Northern Realty Co., 244 U.S. 300, 303 -304; Adams v. Russell, 229 U.S. 353, 358 -362; Allen v. Arguimbau, 198 U.S. 149, 154 -155; Johnson v. Risk, 137 U.S. 300, 307 ; Klinger v. Missouri, 13 Wall. 257, 263.
The amending order of the Georgia Court of Appeals does not, in our view, change the posture of this case - it does not remove the strong possibility, in light of Georgia law, that the Supreme Court of Georgia might have rested its order on a nonfederal ground. We are without jurisdiction when the question of the existence of an [343 U.S. 541, 548] adequate state ground is debatable. Bachtel v. Wilson, 204 U.S. 36 .
The petition for certiorari was improvidently granted, and the case is dismissed.
While I think the better course would be to affirm the decision of the Georgia courts, I join in the judgment of this Court.
MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON dissent from the dismissal. [343 U.S. 541, 549]