Patterson v. Caldwell , 229 Ga. 321 ( 1972 )

Hawes, Justice.

Patterson’s petition for the writ of habeas corpus was granted. On the hearing of his case he was remanded to the custody of the warden. He appealed.

1. He contends that the court erred in finding his imprisonment to be legal in that he had been accumulatively sentenced to 13 years imprisonment upon his conviction on a 5-count indictment charging him with possessing five forged checks in violation of the provisions of former Code §26-3911, which Code section made the possession of any false, forged, counterfeit or altered note, bill, draft or check with the intention to fraudulently pass the same a felony. A sentence of five years’ imprisonment on the first count and sentences of two years’ imprisonment on the other four counts of the indictment, said sentences to be served consecutively were imposed. The possession of each check, when accompanied by the requisite fraudulent intent, was a separate offense. It was within the discretion of the trial judge, upon his conviction on each count, to impose consecutive sentences upon the petitioner. Code Ann. § 27-2510; Bulfin v. State, 38 Ga. App. 358 (144 SE 15); Murphey v. Lowry, 178 Ga. 138 (172 SE 457); Strauss v. Stynchcombe, 224 Ga. 859, 868 (165 SE2d 302).

Submitted April 10, 1972 Decided July 12, 1972.

2. Upon the trial of the habeas corpus case, the judge is the trior of both the law and the facts. Accordingly, where the evidence as to what transpired upon the trial in the criminal case is in dispute a finding against the contentions of the petitioner on such issues of fact will not be disturbed where there is any evidence to support such finding. Laidler v. Smith, 227 Ga. 759 (3) (182 SE2d 891); Calhoun v. Caldwell, 228 Ga. 804, 805 (188 SE2d 498). In this case there was evidence authorizing the judge to reject the contention of the petitioner that the trial court relied upon an erroneous arrest record in imposing sentence upon the petitioner.

3. Appellant contended that the judge of the superior court who presided at his trial was prejudiced against him. No evidence in support of this contention was introduced, and, therefore, his contention in this regard was not sustained.

4. The judge did not err in remanding the petitioner to the custody of the warden and denying the writ of habeas corpus.

Judgment affirmed.

All the Justices concur, except Gunter and Jordan, JJ., who dissent. Oscar L. Patterson, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.