When upon examination of the petition for a writ of habeas corpus it appears to the judge that the restraint of liberty is illegal, he shall grant the writ, requiring the person restraining the liberty of another or illegally detaining such person in his custody to bring the person before him at a time and place to be specified in the writ for the purpose of an examination into the cause of the detention.
(Orig. Code 1863, § 3912; Code 1868, § 3936; Code 1873, § 4012; Code 1882, § 4012; Penal Code 1895, § 1213; Penal Code 1910, § 1294; Code 1933, § 50-104.)
OPINIONS OF THE ATTORNEY GENERAL
Former Code 1933, § 39-105 (see now O.C.G.A. § 9-13-4) should be construed in connection with former Code 1933, § 50-104 (see now O.C.G.A. § 9-14-5). 1945-47 Op. Att'y Gen. p. 353.
Meaning of section.- This section provides that when a petition is presented, and it appears to the judge that the restraint is illegal, the judge shall grant the writ and require the person restraining the liberty of another to bring such person before the judge, at a time and place specified in the writ for examination into the cause of detention. 1945-47 Op. Att'y Gen. p. 353.
Writ returnable to any county in circuit.- Superior court judge may make a writ of habeas corpus returnable to any county in the circuit, but the proceedings should be recorded in the county where the detention occurred. 1945-47 Op. Att'y Gen. p. 353.
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 12.
13 Am. Jur. Pleading and Practice Forms, Habeas Corpus, § 129.
C.J.S.- 39 C.J.S., Habeas Corpus, §§ 52, 53.
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.
Illegal or erroneous sentence as ground for habeas corpus, 76 A.L.R. 468.
Determination in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged, 81 A.L.R. 552; 40 A.L.R.2d 1151.
Liability of judge, court, administrative officer, of other custodian of person for whose release the writ is sought, in connection with habeas corpus proceedings, 84 A.L.R. 807.
Former jeopardy as ground for habeas corpus, 8 A.L.R.2d 285.
Habeas corpus on ground of deprivation of right to appeal, 19 A.L.R.2d 789.