1. The writ of habeas corpus is an available remedy for release of one illegally restrained of his liberty. Code, § 50-101. Detention by arrest under a bench warrant based on an indictment regular upon its face (§ 27-801) is not illegal; and consequently the writ of habeas corpus is not available for discharge of one so arrested. § 50-116 (3). See 29 C. J. 45, § 37; Holder v. Beavers, 141 Ga. 217 (2) (80 S.E. 715); Jackson v. Lowry, 170 Ga. 755 (154 S.E. 228). The judge did not err in refusing to discharge the accused on writ of habeas corpus.
2. It is unnecessary to pass on other assignments of error in reference to the right of the State to place a person on trial under an indictment for robbery by force, where such person had been previously acquitted under an indictment for murder committed during an attempted robbery, based on the same facts, and dependent for conviction upon the same evidence as was depended upon in the trial for murder.
Judgment affirmed. All the Justices concur.
No. 13435. SEPTEMBER 24, 1940. REHEARING DENIED OCTOBER 15, 1940.
On December 17, 1938, Clelian Chalker was killed during an attempt to rob him. John Sherman Harris was indicted for murder by shooting Chalker with a pistol. The jury returned a verdict of *Page 851
guilty, without a recommendation. On writ of error the judgment refusing a new trial was reversed. Harris v. State, 188 Ga. 745
(4 S.E.2d 651). On another trial (a change of venue having been allowed) the jury returned a verdict of not guilty, and the defendant was released from custody. Subsequently he was indicted for robbery by force, alleged to have been committed against Chalker on the day he was killed. When again taken into custody under a bench warrant based on the last indictment, he instituted habeas-corpus proceedings, alleging that to again place him on trial would deny the rights guaranteed under article 1, section 1, paragraph 8, of the constitution of Georgia (Code, § 2-108), which provides: "No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial," and under article 5 of the constitution of the United States (§ 1-805), which provides, in part: "No person shall be held . . for the same offense to be twice put in jeopardy of life or limb," and would be violative of the 14th amendment to the constitution of the United States (§ 1-815) which provides, in part: "Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," because "to now place your petitioner on trial the second time, ostensibly for a different offense, but actually for the same offense, covered by the same facts, and dependent upon the same evidence, for conviction, as was depended upon in his said former trial for murder . . and upon which he was acquitted, would be to deprive him illegally of his constitutional guaranties." The evidence on the murder trials showed that Chalker was killed during an attempted robbery. The exception is to a judgment denying the application for habeas corpus, and remanding defendant to the custody of the officer.