No person shall be discharged upon the hearing of a writ of habeas corpus in the following cases:
(Orig. Code 1863, § 3924; Code 1868, § 3947; Code 1873, § 4023; Code 1882, § 4023; Penal Code 1895, § 1224; Penal Code 1910, § 1305; Code 1933, § 50-116.)
Cross references.- For further provisions regarding discharge on writ of habeas corpus because of informality in the commitment or the proceedings prior thereto, see § 17-7-34.
JUDICIAL DECISIONSANALYSIS
In General
Editor's notes.
- Article 2 of this chapter now provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of sentence of a state court of record, expanding the scope of habeas in such cases. See O.C.G.A. §§ 9-14-40 and9-14-41.
Function of writ of habeas corpus is to inquire into and determine legality of detention at the time of hearing, such detention being illegal if judgment of conviction is void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).
Habeas corpus not substitute for other remedial procedures.
- Habeas corpus cannot be used as a substitute for a motion for new trial, writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), or other remedial procedure. Gibson v. Balkcom, 217 Ga. 824, 125 S.E.2d 504 (1962).
Habeas corpus cannot be made a substitute for certiorari, bill of exceptions, or other similar remedial procedure by which errors and irregularities in judgments or convictions are to be corrected. Davis v. Smith, 7 Ga. App. 192, 66 S.E. 401 (1909); Harrell v. Avera, 139 Ga. 340, 77 S.E. 160 (1913).
Habeas corpus cannot be substituted for writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50). Jackson v. Lowry, 170 Ga. 755, 154 S.E. 228 (1930).
Habeas corpus cannot be used as a substitute for appeal, writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), or other remedial procedure. Shiflett v. Dobson, 180 Ga. 23, 177 S.E. 681 (1934); Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).
Writ of habeas corpus cannot be used as a substitute for a writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), or other remedial procedure to correct errors of law, of which the defendant has had opportunity to avail oneself. Moore v. Burnett, 215 Ga. 146, 109 S.E.2d 605 (1959); Smith v. Balkcom, 217 Ga. 51, 120 S.E.2d 617 (1961).
Writ of habeas corpus cannot be substituted for a motion for new trial, writ of error, or other remedial procedure, or be used as a remedy for the review of alleged errors in the trial court. Coates v. Balkcom, 216 Ga. 564, 118 S.E.2d 376 (1961).
Habeas corpus cannot be used as a substitute for appeal, writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), or other remedial procedure for the correction of errors or irregularities alleged to have been committed by a trial court. Grimes v. Harvey, 219 Ga. 675, 135 S.E.2d 281 (1964).
Writ of habeas corpus is never a substitute for review to correct mere errors of law. Moore v. Dutton, 223 Ga. 585, 157 S.E.2d 267 (1967).
Writ of habeas corpus cannot be properly employed as substitute for motion to withdraw guilty plea.
- Writ of habeas corpus cannot be properly employed as a substitute for a motion to withdraw a plea of guilty improperly entered. Dean v. Balkcom, 214 Ga. 222, 104 S.E.2d 126 (1958).
Habeas court cannot direct trial date.
- It is beyond the authority of the habeas court to direct that the defendant be retried by the trial court within a certain period of time. State v. Hernandez-Cuevas, 202 Ga. App. 861, 415 S.E.2d 713 (1992).
Defendant not entitled to release when bench warrant issued.
- When judge of city court presided in superior court, the verdict and judgment did not of themselves afford any cause for detaining in custody a person against whom the verdicts were rendered, but such person ought not to be discharged upon habeas corpus if imprisoned under a bench warrant originally issued against the person in the case, but should be held until lawfully tried upon the indictment. Wells v. Newton, 101 Ga. 141, 28 S.E. 640 (1897).
Habeas not available remedy for valid imprisonment for contempt.
- When an individual is imprisoned by valid order of court for contempt, the imprisonment is not unlawful, and the remedy of the party to purge oneself of contempt is not by habeas corpus, but by application to the court by whose order the individual is in confinement. Tolleson v. Greene, 83 Ga. 499, 10 S.E. 120 (1889).
Habeas corpus is not an available remedy for direct contempt when no question of jurisdiction of the court is involved. Hall v. Martin, 177 Ga. 238, 170 S.E. 41 (1933).
When receiver has been adjudged in contempt and imprisoned for refusal to deliver property, the receiver will not be discharged under a writ of habeas corpus sued out before another judge on the ground that the receiver is unable by reason of poverty to comply with the order. Tindall v. Westcott, 113 Ga. 1114, 39 S.E. 450, 55 L.R.A. 225 (1901).
Exhaustion of statutory remedies necessary to obtain release from commitment.
- When a person has been adjudged insane and committed to an institution and thereafter seeks to be discharged upon the ground that the person's sanity has been restored, the person cannot invoke a writ of habeas corpus without showing that the person has exhausted specific statutory remedies when such are provided; however, a party might perhaps show some valid reason excusing failure to pursue a statutory remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).
When a person charged with a criminal offense filed a special plea of insanity and on such plea was found insane and committed, and after commitment left the hospital without permission and was later taken into custody by a sheriff for the purpose of being returned to such institution, the person could not maintain a petition for the writ of habeas corpus on the ground that the person had regained the person's sanity, without showing that the person had pursued or attempted to pursue the statutory method of obtaining release from the institution, or without alleging and proving some valid reason for the person's failure to invoke such remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).
Unlawful arrest held insufficient cause for release.
- When a person accused of violating an ordinance was brought before a municipal court having jurisdiction and a formal charge was served on the person according to law, it was not sufficient cause for the person's release in advance of the time set for trial on writ of habeas corpus that the person's arrest was unlawful. Holder v. Beavers, 141 Ga. 217, 80 S.E. 715 (1914).
Errors in commitment hearing.
- Writ of habeas corpus cannot bring into review alleged irregularities or errors of procedure before the committal court, or questions as to the sufficiency of the evidence upon which the applicant in the writ was committed. Young v. Fain, 121 Ga. 737, 49 S.E. 731 (1905).
Writ of habeas corpus cannot be employed to correct errors or irregularities in commitment hearing before justice of the peace, but the judgment committing the defendant must be absolutely void for habeas to issue. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).
While it was the absolute duty of the justice of the peace to cause an abstract of all the evidence to be made and return the abstract to the superior court, failure of the justice to comply with such duty did not so vitiate the hearing and commitment as to render them absolutely void so as to authorize the grant of a writ of habeas corpus. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).
Bail trover.
- Proof by the defendant in bail trover of inability to produce the property sued for, on the return of a writ of habeas corpus issued at the defendant's instance, would not authorize the defendant's discharge. Harris v. Bridges, 57 Ga. 407, 24 Am. R. 495 (1876).
Defendant in bail trover could not procure discharge on habeas corpus sued out by the defendant or at the defendant's instance on the ground that the plaintiff had not met the plaintiff's legal obligations in respect to fees due or to become due the jailor. Perry v. McLendon, 62 Ga. 598 (1879).
Refusal of writ held error.
- Refusal of writ of habeas was error when the individual was arrested and committed to jail to answer before the superior court, but before being actually imprisoned, was carried before the county court, charged with the same offense, pled guilty, was fined, and after a third party agreed to pay the fine, was discharged, but afterwards placed in jail when the third party failed to pay the fine. Williams v. Mize, 72 Ga. 129 (1883); Howard v. Tucker, 12 Ga. App. 353, 77 S.E. 191 (1913).
Refusal of writ upheld.
- When one refusing to work the public roads was fined and in default of payment imprisoned, such imprisonment was lawful and there was no error in refusing to discharge the petitioner under the writ of habeas corpus. Singleton v. Holmes, 70 Ga. 407 (1883).
Defendant held not entitled to habeas on ground that revocation of order releasing the defendant was void. Aldredge v. Potts, 187 Ga. 290, 200 S.E. 113 (1938).
Refusal on hearing of a writ of habeas corpus to discharge the applicant, held under an extradition warrant as a fugitive from justice for allegedly violating parole, held not error. Broyles v. Mount, 197 Ga. 659, 30 S.E.2d 48 (1944).
Allegations in petition for habeas corpus that order of revocation under attack was premature in that the probationer was entitled to a jury trial on the question of whether or not the probationer had committed the offense alleged to have been committed in violation of the terms of the probationer's probation prior to revocation, that three days' notice of revocation hearing was not sufficient or adequate notice, that the probationer had been acquitted by a jury, subsequent to the order of revocation, of the offense alleged to have constituted the probation violation, and that the evidence on the hearing was insufficient to sustain the exercise of the judge's discretion in revoking probation were insufficient to sustain the prisoner's discharge under the writ in that such allegations failed to show that the judgment of revocation was void, which is requisite to such relief. Balkcom v. Parris, 215 Ga. 123, 109 S.E.2d 48 (1959).
Dismissal of an inmate's habeas petition without a hearing was proper as the petition failed to state any viable claim for pre-conviction habeas corpus relief since: (1) the inmate was not entitled to appointed counsel in the habeas corpus proceeding; (2) the habeas court was not required to make a determination of the inmate's mental state as it was an issue to be addressed in the context of the criminal prosecution; and (3) the inmate did not seek issuance of the writ on the ground that the inmate had tendered proper bail in connection with the inmate's then-pending prosecution on the criminal charge. Britt v. Conway, 281 Ga. 189, 637 S.E.2d 43 (2006).
Prisoner awaiting trial was not entitled to writ of habeas corpus under O.C.G.A. § 9-14-16 because the prisoner did not seek habeas relief on the ground that the case was one in which bail was allowed and when proper bail had been tendered; thus, it was not error to dismiss the habeas application without a hearing. Britt v. Conway, 283 Ga. 474, 660 S.E.2d 526 (2008).
Rearrest unlawful after discharge on habeas.
- When a person has been discharged by a commissioner on a writ of habeas corpus, the sheriff has no authority to rearrest and imprison the person upon the same sentence upon which the person was imprisoned the first time and such rearrest is unlawful. Sanders v. McHan, 206 Ga. 155, 56 S.E.2d 281 (1949).
Cited in Smith v. McLendon, 59 Ga. 523 (1877); Smith v. Milton, 149 Ga. 28, 98 S.E. 607 (1919); Jackson v. Lowry, 170 Ga. 755, 154 S.E. 228 (1930); Sanders v. Paschal, 186 Ga. 837, 199 S.E. 153 (1938); Rhodes v. Pearce, 189 Ga. 623, 7 S.E.2d 251 (1940); Harris v. Whittle, 190 Ga. 850, 10 S.E.2d 926 (1940); Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947); Johnson v. Plunkett, 215 Ga. 353, 110 S.E.2d 745 (1959); Gilbert v. Balkcom, 217 Ga. 168, 121 S.E.2d 648 (1961); Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970); Baez v. Lemacks, 264 Ga. 808, 452 S.E.2d 491 (1994).
Habeas after Conviction
Writ of habeas corpus is appropriate remedy only when the court was without jurisdiction in the premises, or when the court exceeded the court's jurisdiction in passing sentence by virtue of which the party is imprisoned, or when the defendant in the defendant 's trial was denied due process of law. Balkcom v. Parris, 215 Ga. 123, 109 S.E.2d 48 (1959).
Writ of habeas corpus is never allowable as a substitute for a writ of error or other remedial procedure to correct errors in the trial of a criminal case, but is the appropriate remedy only when the court was without jurisdiction in the premises, or when the court exceeded the court's jurisdiction in passing the sentence by virtue of which the party is imprisoned, so that such sentence is not merely erroneous, but is absolutely void. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).
Void judgments or sentences.
- Habeas corpus proceeding brought by a person under sentence is the appropriate remedy only when the court is without jurisdiction in making the order, rendering the judgment, or passing sentence by virtue of which the party is imprisoned so that such order, judgment, or sentence is not merely erroneous, but is absolutely void. Stewart v. Sanders, 199 Ga. 497, 34 S.E.2d 649 (1945).
Discharge under writ of habeas corpus, after conviction, cannot be granted unless the judgment is absolutely void. Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946).
Habeas corpus is the appropriate remedy only when the court was without jurisdiction in the premises, or when the court exceeded the court's jurisdiction in making the order, rendering the judgment, or passing the sentence by virtue of which the party is imprisoned, so that such order, judgment, or sentence is not merely erroneous, but is absolutely void. Coates v. Balkcom, 216 Ga. 564, 118 S.E.2d 376 (1961); Grimes v. Harvey, 219 Ga. 675, 135 S.E.2d 281 (1964).
Judgment must be absolutely void.
- Discharge under a writ of habeas corpus after conviction cannot be granted unless judgment is absolutely void as when the convicting court was without jurisdiction, or when the defendant in the defendant 's trial was denied due process of law in violation of the Constitution. Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469 (1939), cert. denied, 309 U.S. 661, 60 S. Ct. 512, 84 L. Ed. 1009 (1940); Stroup v. Mount, 197 Ga. 804, 30 S.E.2d 477 (1944).
Discharge under a writ of habeas corpus, after a plea of guilty by one accused of a crime, cannot be granted except in cases when the judgment is absolutely void for the reason that the function of the writ in criminal cases is not to test the truth of any fact essential to the establishment of guilt, but only to discharge one convicted of a crime when the judgment is wholly void. Dean v. Balkcom, 214 Ga. 222, 104 S.E.2d 126 (1958).
Rule that habeas corpus is not a substitute for a writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) means that habeas corpus will not lie to correct voidable judgments, that is, judgments which are merely erroneous, but will lie to secure release from detention under a judgment which is utterly void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).
Habeas corpus is an available remedy to attack a void judgment. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964); Balkcom v. Roberts, 221 Ga. 339, 144 S.E.2d 524 (1965).
Questions as to guilt, innocence, or irregularities not considered absent void judgment.
- Since writ of habeas cannot be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law of which the defendant had an opportunity to avail oneself, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void. Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469 (1939), cert. denied, 309 U.S. 661, 60 S. Ct. 512, 84 L. Ed. 1009 (1940); Stroup v. Mount, 197 Ga. 804, 30 S.E.2d 477 (1944).
No question as to any irregularity can be raised by writ of habeas corpus, unless it is such as would render the judgment wholly void. Smith v. Balkcom, 217 Ga. 51, 120 S.E.2d 617 (1961).
Conviction not void when day in court had.
- Habeas is proper to attack a void conviction, but a conviction is not void if the defendant has had the defendant 's day in court. Davis v. Smith, 7 Ga. App. 192, 66 S.E. 401 (1909); Harrell v. Avera, 139 Ga. 340, 77 S.E. 160 (1913).
Writ not a substitute for other remedial procedures.
- Writ of habeas corpus, sought by one convicted of crime who seeks thereby to obtain one's liberty, can be maintained only for defects such as render judgment of conviction void, and cannot be made a substitute for a writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) or other remedial procedure for the correction of errors and irregularities. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
Habeas corpus is never a substitute for a writ of error or other remedial procedure to correct errors in the trial of a criminal case. Stroup v. Mount, 197 Ga. 804, 30 S.E.2d 477 (1944).
Writ of habeas corpus cannot be used as a substitute for appeal, writ of certiorari, writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), or other remedial procedure for the correction of errors of law of which the defendant had opportunity to avail oneself, nor can it be used as a second appeal or writ of error for such purpose. Hodges v. Balkcom, 209 Ga. 856, 76 S.E.2d 798 (1953).
When a person charged with a criminal offense has been sentenced by a court having jurisdiction of one's person and of the offense, habeas corpus cannot be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).
When one has been convicted of a crime, habeas corpus cannot be used as a substitute for appeal or other remedial procedure for the correction of errors and irregularities, nor can it be used as a second appeal for such purpose. Ferguson v. Balkcom, 222 Ga. 676, 151 S.E.2d 707 (1966), rev'd on other grounds sub nom. Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961), cert. denied, 375 U.S. 913, 84 S. Ct. 210, 11 L. Ed. 2d 152 (1963).
Writ of habeas corpus is never a substitute for a review to correct mere errors of law. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964).
Waiver of issues not raised at trial.
- Petitioner cannot complain, in a petition for habeas corpus, of matters to which the petitioner should have excepted at trial. McFarland v. Donaldson, 115 Ga. 567, 41 S.E. 1000 (1902).
Defense of former jeopardy should be interposed on arraignment; and when this is not done, the defendant cannot, subsequent to conviction, set up this constitutional inhibition by habeas corpus. Yeates v. Roberson, 4 Ga. App. 573, 62 S.E. 104 (1908). See also Holder v. Beavers, 141 Ga. 217, 80 S.E. 715 (1914).
Applicant is not at liberty to prove, by way of habeas, that confession was involuntary when the issue was not raised at trial. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
Objection on the grounds of systematic racial exclusion involving a grand jury should have been presented in a proper way at trial, and upon failure to do so is considered waived and hence does not present a ground for habeas corpus. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
Complaint that confession introduced at trial was obtained by duress did not present a good ground for habeas corpus for the reason that such objection should have been made at trial, and upon failure to do so, it was considered waived. Booth v. Aderhold, 199 Ga. 655, 34 S.E.2d 869 (1945).
Objections to accusation under which petitioner pleaded nolo contendere and was sentenced, on ground that the accusation was void and did not charge defendant with any offense, could have been raised at trial and were not jurisdictional. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).
Issue decided at trial res judicata.
- While one indicted and tried under an unconstitutional statute may, even after final conviction, obtain discharge from custody on a writ of habeas corpus, when the accused, at trial, brings into question the validity of the statute under which one has been indicted, and the point is decided against the person, it then becomes res adjudicata, and cannot be reviewed collaterally on habeas corpus. Moore v. Burnett, 215 Ga. 146, 109 S.E.2d 605 (1959).
When the petitioner, by general demurrer, attacked the constitutionality of an ordinance under which the petitioner was convicted in the recorder's court, which ruling thereon was adverse to the petitioner, and thereafter voluntarily dismissed the petition for certiorari therefrom in the superior court, the question of the constitutionality of the ordinance became res adjudicata and could not thereafter be reviewed collaterally by habeas corpus. Moore v. Burnett, 215 Ga. 146, 109 S.E.2d 605 (1959).
Judgment confirmed on appeal not subject to attack on habeas except for lack of jurisdiction.
- When a judgment has been confirmed by the Supreme Court on writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), the legality of the conviction cannot be drawn into question by habeas corpus, save for want of jurisdiction appearing on the face of the record. Daniels v. Towers, 79 Ga. 785, 7 S.E. 120 (1887).
Writ not available to attack only one of two counts of conviction.
- Habeas corpus is not an available remedy to state prisoner under a valid judgment of conviction under first count of a two-count indictment, even though the judgment of conviction under count two is void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).
Writ not available on four of seven sentences.
- When four of the seven sentences were binding upon the petitioner and had not been served out, the petitioner could not be discharged upon a writ of habeas corpus even though three remaining sentences were unwarranted by law and void. Brady v. Joiner, 101 Ga. 190, 28 S.E. 679 (1897).
Habeas held proper.
- When there is a general law punishing the carrying of certain concealed weapons and a city ordinance prohibits under the same penalties each of several distinct and separate acts, some of which are within the corporate power to punish and some are not, due to the general law, plea of guilty to an accusation which merely charges generally a violation of the ordinance, without specifying any act whatever, cannot be applied to one class of the acts embraced in the ordinances rather than the other; hence, a judgment of conviction was void and the petitioner should be discharged on a writ of habeas corpus. Collins v. Hall, 92 Ga. 411, 17 S.E. 622 (1893).
When mere usurper was acting as mayor and sentenced the accused, habeas properly issued. Stroup v. Pruden, 104 Ga. 721, 30 S.E. 948 (1898).
One indicted, convicted, and sentenced under a repealed statute may be discharged by habeas corpus if at trial the question of the validity of such statute was not made and adjudicated against the person. Griffin v. Eaves, 114 Ga. 65, 39 S.E. 913 (1901).
Habeas corpus properly issued when indictment was void and no question as to the indictment's validity was adjudicated at trial. McDonald v. State, 126 Ga. 536, 55 S.E. 235 (1906).
Deprivation of counsel is such a fundamental and radical error that it operates to render trial illegal and void, and denial of benefit of counsel constitutes a ground for issuance of a writ of habeas corpus. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).
When prisoner contends that the prisoner has executed the sentence imposed, habeas corpus is a proper remedy to call into question the prisoner's restraint. Goble v. Reese, 214 Ga. 697, 107 S.E.2d 175 (1959).
Person who is held in custody by reason of conviction under an accusation which fails to charge an offense against the laws of this state may secure the person's release by habeas corpus. McCain v. Smith, 221 Ga. 353, 144 S.E.2d 522 (1965).
Refusal of habeas held proper.
- Writ of habeas corpus would not be allowed on grounds of illegal conviction after an individual was convicted of keeping a bar open on Sunday in violation of a city ordinance, even though there was a general law to the same effect, since the legislature had passed a local statute allowing the city council to pass all ordinances in relation to keeping open tippling houses on Sunday in the city. Hood v. Von Glahn, 88 Ga. 405, 14 S.E. 564 (1892).
When verdict of the jury found petitioner guilty of vagrancy, even if sentence was improperly passed upon the petitioner without affording the petitioner an opportunity to give bond for future good behavior, the petitioner would not be entitled to be discharged on a writ of habeas corpus, but would be held in custody for proper sentence. Coleman v. Nelms, 119 Ga. 307, 46 S.E. 451 (1904).
Fact that certain members of the grand jury who returned a bill of indictment under which the accused was tried and convicted had served at the previous term of the court was no reason for allowing the writ. Phillips v. Brown, 122 Ga. 571, 50 S.E. 361 (1905).
When sentence is lawful and not unauthorized by law, writ of habeas corpus will be denied. Flagg v. Sisson, 125 Ga. 277, 54 S.E. 171 (1906); Lyons v. Collier, 125 Ga. 231, 54 S.E. 183 (1906); Harper v. Terry, 139 Ga. 763, 78 S.E. 175 (1913).
Retention of petitioner in habeas corpus proceeding under authority of city officials for the purpose of carrying into execution the judgment of the mayor was not unauthorized by law and the defendants were not, for any reason assigned, entitled to discharge. Shuler v. Willis, 126 Ga. 73, 54 S.E. 965 (1906).
Writ of habeas was properly refused when the applicant was sentenced, but subsequently the judge instructed the sheriff to release the applicant and not enforce the sentence if the applicant stayed out of the Western Circuit, the judge stating at the same time that if the applicant came back in the circuit the sentence would no longer be suspended, and before the expiration of the sentence, the applicant reappeared in the circuit and was arrested upon written order of the judge. O'Dwyer v. Kelly, 133 Ga. 824, 67 S.E. 106 (1910).
Allegation that conviction was not warranted under the evidence does not furnish a reason for discharging a person convicted upon a writ of habeas corpus. Hicks v. Hamrick, 144 Ga. 403, 87 S.E. 415 (1915).
Error in verdict held no cause for writ. Naylor v. Dixon, 145 Ga. 833, 90 S.E. 74 (1916).
Complaint that confession introduced at trial was obtained by duress did not present a good ground for habeas corpus for the reason that such an objection should have been properly made at the trial and upon failure to do so was considered waived. Stroup v. Mount, 197 Ga. 804, 30 S.E.2d 477 (1944).
When court had jurisdiction of the offense and the offender, the sufficiency of the accusation or of the acts therein set forth to constitute a crime cannot be considered on habeas corpus. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).
In habeas corpus proceedings when the record is silent on the question of whether the defendant had counsel, was furnished with a list of witnesses, and was notified of the nature of the offense charged against the defendant, it will be presumed that whatever ought to have been done in the trial court was rightly done. Plocar v. Foster, 211 Ga. 153, 84 S.E.2d 360 (1954), cert. denied, 349 U.S. 962, 75 S. Ct. 893, 99 L. Ed. 1284 (1955).
Petition for habeas corpus which fails to allege that the petitioner is being held under a void judgment and fails to make any attack upon such judgment, but simply alleges facts which the petitioner contends show a conspiracy on the part of certain individuals to prevent the petitioner being heard in superior court on a motion to withdraw the petitioner's plea of guilty, which the petitioner contends the petitioner entered improperly, fails to set forth any legal basis for issuance of the writ. Dean v. Balkcom, 214 Ga. 222, 104 S.E.2d 126 (1958).
Record showing that petitioner was being held under valid, unexpired sentences which were not contested showed that the petitioner's detention was not unlawful and release on habeas corpus was not authorized. Balkcom v. Chastain, 220 Ga. 265, 138 S.E.2d 319 (1964).
When there was no testimony to show that lack of counsel at a commitment hearing in any way prejudiced the petitioner at trial wherein the petitioner's appointed counsel entered a plea of guilty and the petitioner was sentenced to life imprisonment, it was error to release the petitioner for lack of counsel at the commitment hearing. Smith v. Fuller, 223 Ga. 673, 157 S.E.2d 447 (1967).
Refusal of Supreme Court to review adverse ruling not within purview of habeas.
- Claim of illegal detention in refusal by Supreme Court to review adverse ruling on a motion for new trial because of improper preparation of a brief of evidence on a previous appeal was not within the purview of habeas corpus. Coates v. Balkcom, 216 Ga. 564, 118 S.E.2d 376 (1961).
Remand to respondent held only authorized disposition under circumstances.
- When it is unquestioned that detention of the petitioner under sentences from other counties is legal, the trial judge has no authority to make any other disposition of the writ of habeas corpus except to remand the petitioner to the custody of the respondent. Balkcom v. Hurst, 220 Ga. 405, 139 S.E.2d 306 (1964).
Judge without authority to direct crediting of time on future sentence.
- Trial judge in habeas corpus proceeding was without authority to direct that the applicant be given credit for time served on sentences involved upon any sentence which might be imposed in the event of conviction for either or both of the offenses for which the applicant was previously sentenced and the applicant's effort to do so was a nullity. Balkcom v. Williams, 220 Ga. 359, 138 S.E.2d 873 (1964).
RESEARCH REFERENCES
ALR.
- Habeas corpus to test constitutionality of ordinance under which petitioner is held, 32 A.L.R. 1054.
Power to grant writ of habeas corpus pending appeal from conviction, 52 A.L.R. 876.
Discharge on habeas corpus in federal court from custody under process of state court for acts done under federal authority, 65 A.L.R. 733.
Illegal or erroneous sentence as ground for habeas corpus, 76 A.L.R. 468.
Bar of limitations as proper subject of investigation in extradition proceedings or in habeas corpus proceedings for release of one sought to be extradited, 77 A.L.R. 902.
Disqualification of judge who presided at trial or of juror as ground of habeas corpus, 124 A.L.R. 1079.
When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus - modern cases, 26 A.L.R.4th 455.