Poss v. Smith , 228 Ga. 168 ( 1971 )

228 Ga. 168 (1971) 184 S.E.2d 465

POSS
v.
SMITH.

26733.

Supreme Court of Georgia.

Argued September 15, 1971. Decided October 7, 1971.

Hester & Hester, Frank B. Hester, for appellant.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, B. Daniel Dubberly, Jr., Deputy Assistant Attorney General, Courtney Wilder Stanton, Dorothy T. Beasley, Assistant Attorneys General, for appellee.

NICHOLS, Justice.

This is the third appeal reaching the appellate courts of this State as a result of the prisoner's conviction for the offense of burglary. See Poss v. State, 116 Ga. App. 264 (157 SE2d 33); Poss v. Smith, 227 Ga. 43 (178 SE2d 859). Held:

"``It is a well-settled rule of practice and procedure that where one, as here, has been convicted of 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. It is an appropriate remedy only when the judgment or sentence under which applicant is being restrained is not merely erroneous but is absolutely void.' Ferguson v. Balkcom, 222 Ga. 676, 677 (151 SE2d 707) and cit." Bonner v. Smith, 226 Ga. 250 (3) (174 SE2d 438); Bush v. Chappell, 225 Ga. 659, 660 (171 SE2d 128). Nor can it be used to review alleged errors in the court's instructions to the jury. See Shoemake v. Whitlock, 226 Ga. 771 (177 SE2d 677).

Accordingly, the enumerations of error, all of which either relate to admission of evidence, the overrulings of motions for mistrial and the charge of the court fail to show any reversible error in remanding the prisoner to the custody of the warden to complete his sentence.

Judgment affirmed. All the Justices concur.