Walling v. Harris

210 Ga. 97 (1953) 78 S.E.2d 7

WALLING
v.
HARRIS, Sheriff.

18308.

Supreme Court of Georgia.

Submitted September 14, 1953. Decided October 13, 1953.

James N. Rahal, for plaintiff in error.

Andrew J. Ryan, Solicitor-General, Sylvan A. Garfunkel, Thomas M. Johnson, Jr., Assistant Solicitors-General, contra.

WORRILL, Justice.

1. "Where a habeas corpus proceeding is instituted for the release of a prisoner upon the grounds that he was deprived of his constitutional rights of the benefit of counsel and of trial by jury, and there is an issue of fact on the allegations made by the movant, the trial judge becomes the trior; and where there is ample evidence to support his judgment, it will not be set aside." Mathis v. Scott, 199 Ga. 743 (2) (35 S.E.2d 285); Bradford v. Mills, 208 Ga. 198 (3) (66 S.E.2d 58).

2. "The writ of habeas corpus cannot be used as a substitute for appeal, writ of certiorari, writ of error, or other remedial procedure for the correction of errors of law, of which the defendant has had opportunity to avail himself; nor can it be used as a second appeal or writ of error for such purpose." Hodges v. Balkcom, 209 Ga. 856 (3) (76 S.E.2d 798).

3. Applying the above principles to the evidence in the present case, the trial judge did not err in remanding the petitioner to the custody of the respondent.

Judgment affirmed. All the Justices concur.