1. Where a petition for the writ of habeas corpus affirmatively shows on its face that the restraint is legal, the court has the power on general demurrer to dismiss the writ and remand the applicant. In such a case the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of the allegations in the petition.
2. There is nothing contained in the Indeterminate Sentence Act of 1939 which could be construed as giving the jury the right, where by consent two or more cases are tried together, to say whether the sentences shall run concurrently or consecutively. In those cases where the jury assess the punishment, it is mandatory that it fix a minimum and a maximum period within the limits fixed by the statute, this being the extent of the jury's duty.
3. Where a party is accused of several separate and distinct violations, and by consent the cases are tried together by one jury which renders separate verdicts of guilty, it is proper to impose a sentence in each case where the jury returns a verdict of guilty; the only effect of the agreement being that the cases may be jointly tried, which can not be done except by consent.
(a) 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.
No. 15645. NOVEMBER 13, 1946.
On August 9, 1946, Nacomas Morris filed a petition against A. C. Aderhold, Warden of Georgia State Prison, for the writ of habeas corpus. He alleged: That a grand jury in the Superior Court of Crisp County, at the July term, 1942, had returned three true bills against him, each charging a felony. Indictment No. 6397 was in two counts. The first charged him with having forged the name of W. E. Gordon to a check for $10, drawn on Cordele Banking Company on July 13, 1942. The second count charged
that he falsely and fraudulently passed to W. G. Gleaton the forged check of $10 on the date it was forged. Indictment No. 6399 charged that he forged the name of W. E. Gordon to a check for the sum of $8, on July 13, 1942, which was drawn on Cordele Banking Company. Indictment No. 6400 charged him with having forged the name of W. E. Gordon on a check for $15, on July 17, 1942, which was drawn on First State Bank in Cordele. He filed pleas of not guilty, a separate plea being entered on each indictment. By consent the three cases were tried together before one jury, which returned a verdict of guilty on each of the three indictments, and by each separate verdict fixed his punishment at from three to four years in the penitentiary. The court on October 3, 1942, imposed three separate sentences on him, fixing his punishment in each as found by the jury, but provided therein that they should be served consecutively, that is one to follow the other. He was now being illegally detained under the second sentence thus imposed, which provided that it should begin at the expiration of the first sentence. The court was without authority to provide in the sentences that they should be served consecutively, because: (1) the sentences are known in law as indeterminate sentences, whereby there is a fixed minimum sentence and an indefinite or indeterminate period within a limit of a maximum sentence, to be dealt with by rules of (then the Prison Commission and now) the State Board of Pardons and Paroles, which is a different authority from the court imposing the sentences; (2) the jury by its verdicts made no provision as to whether the sentences should be served concurrently or consecutively, and it was therefore the duty of the court to impose sentences only in accord with the verdicts and sentences, to be concurrently served, which were the only legal ones that could have been imposed; and (3) the three offenses charged indicate a single criminal enterprise of about the same time, and were treated as such by the court in permitting them to be consolidated for trial by one jury, and while the jury returned three like verdicts, one on each indictment, they should be construed as one verdict fixing punishment at from three to four years in the penitentiary. The petitioner had now served more than four years, and was legally entitled to be released.
The respondent demurred generally to the petition as failing to state a cause of action for the relief sought, and as showing on its face that the detention was legal.
The court sustained the demurrer and remanded the accused to the custody of the warden. To this judgment exception was taken.
1. Where an application for the writ of habeas corpus affirmatively shows on its face, as here, that the restraint is legal, the judge before whom the writ is made returnable has the power, on general demurrer, to dismiss the writ and remand the applicant. In such instance the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of the allegations in the petition. Smith v. Milton, 149 Ga. 28
(98 S.E. 607); Coleman v. Grimes, 154 Ga. 852
(115 S.E. 641); Kinman v. Clark, 185 Ga. 328 (195 S.E. 166). The allegations in the application for the writ of habeas corpus affirmatively show that the restraint was legal, and it was therefore not error to sustain the demurrer and remand the applicant.
2. In McLarry v. State, 72 Ga. App. 864
(35 S.E.2d 378), it was held: "Under the law as it now exists, where two or more indictments against an accused are, by consent of the State and of the accused, submitted to the same jury for trial, and where the jury return verdicts of guilty on two or more of such indictments, it is their duty to fix a minimum and a maximum term of years; they have no authority to determine that such verdicts may run concurrently rather than consecutively, and the judge does not err in failing to instruct the jury that they may so decide." In that case McLarry made an application to this court for the writ of certiorari, and after we had carefully examined the case, we denied the writ because we were of the opinion that the decision stated a correct principle of law, and we are still of that opinion. In the instant case the accused was indicted, for three separate and distinct violations of a penal statute, by separate indictments. By consent the three cases were tried together by one jury, which found that he was guilty of all three offenses. Having convicted him, the jury did all that it was authorized to do under § 27-2526 of the Code, namely, fix a minimum and a maximum period of time for him to serve in each case; and then the trial judge imposed a sentence in each case in accordance with the finding of the jury and
specified in the sentences that they were to run consecutively, as he was required to do under § 27-2510 of the Code. There is nothing contained in our Indeterminate Sentence Act of 1939 (Ga. L. 1939, p. 285) which gives the jury the right to say whether sentences shall run concurrently or consecutively. For the reason assigned it was not error for the court to remand the applicant.
3. It is urged that the three offenses charged against the accused represent a single criminal enterprise of about the same date, and were treated as such by the court in permitting them to be tried together before one jury; and that, while the jury returned three like verdicts, one on each indictment, these should have been construed as one verdict fixing punishment at from three to four years in the penitentiary. There is clearly no merit in this contention. Each indictment charged the accused with a separate and distinct offense, and his consent to try all three cases at the same time before one jury did not change that fact. The only effect of the agreement was to permit the cases to be tried jointly, which could only be done by his consent. Habeas corpus, however, is never a substitute for a writ of error, or other remedial procedure to correct errors in the trial of a criminal case. This writ is the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its 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. McFarland v.Donaldson, 115 Ga. 567 (41 S.E. 1000); Smith v. Milton, supra; Wells v. Pridgen, 154 Ga. 397 (114 S.E. 355);Shiflett v. Dodson, 180 Ga. 23 (177 S.E. 681); Kinman v.Clark, supra. Since the three sentences were legal ones, providing for consecutive service, and the accused had only served one of them and started on the second, the court did not err in refusing to release him for the reason herein urged.
It therefore follows from what we have ruled in the preceding divisions that the court did not err in sustaining the general demurrer and remanding the applicant to the custody of the warden.
Judgment affirmed. All the Justices concur.