Cross v. Foote , 17 Ga. App. 802 ( 1916 )

Wade, J.

1. The writ of habeas corpus may be used as a means of freeing one from illegal custody (Kidd v. Brown, 136 Ga. 85, 87, 70 S. E. 881); but “habeas corpus can not 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. A conviction can be attacked by habeas corpus only when it is void. A judgment, though founded on no evidence, is not void where the defendant has actually or constructively had his day in court.” Davis v. Smith, 7 Ga. App. 192 (5), 195 (66 S. E. 401).

2. Generally, on the trial of liabeas-corpus proceedings, the legality of the detention alone is to be determined; and whether or not the applicant for the writ is guilty of the charge upon which the right of custody is claimed is not an issue. Stephens v. Henderson, 120 Ga. 218, 220 (47 S. E. 498); Hudson v. Jennings, 134 Ga. 373 (67 S. E. 1037).

3. The answer to the writ of habeas corpus shows that the applicant was detained under and by virtue of a valid judgment rendered by a court of competent jurisdiction, and that the detention at the time of the hearing was lawful. There was therefore no error in remanding the applicant to custody, regardless of whether the trial of the applicant was not free from irregularities, and notwithstanding the person applying for the writ may have been arrested originally, and before her trial and conviction, without lawful warrant or authority. The cases of McDonald v. Farmers Supply Co., 143 Ga. 552 (85 S. E. 861), and Brieswick v. City of Brunswick, 51 Ga. 639 (21 Am. R. 240), cited by counsel for plaintiff in error, are not in point.

Judgment affirmed..

Bussell, G. J., absent.