Wallace v. Foster

57 S.E.2d 920, 206 Ga. 561, 1950 Ga. LEXIS 526

• Court: Supreme Court of Georgia
• Decided: February 13, 1950
• Docket: 16924
• Status: Published

Opinion

Head, Justice.

1. "A writ of habeas corpus can not be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors or irregularities alleged to have been committed by a trial court.” Shiflett v. Dobson, 180 Ga. 23 (177 S. E. 681); Harrell v. Avera, 139 Ga. 340 (77 S. E. 160); Owen v. White, 182 Ga. 67 (185 S. E. 97) ; Kinman v. Clark, 185 Ga. 328 (195 S. E. 166); McKay v. Balkcom, 203 Ga. 790 (48 S. E. 2d, 453).

(a) The attacks made in this case by the defendant upon his conviction are not based upon any rulings or orders of the trial court wherein the defendant was convicted. A defendant may not assert his defense by piecemeal, nor will he be permitted to rest his chances for a new trial upon some of the errors alleged to have been committed upon the trial of his case, and thereafter, upon the denial of his motion for new trial, substitute the writ of habeas corpus to review alleged assignments of error which might have been included in the former motion for new trial, had such assignments been properly predicated upon some adverse ruling by the trial court.

2. The writ of habeas corpus “is the appropriate remedy only when the court was without jurisdiction in the premises, or where it exceeded its jurisdiction in making the order, rendering the judgment, or passing the sentence by virtue of which the party is imprisoned, so that such order, judgment, or sentence is not merely erroneous, but is absolutely void.” Wells v. Pridgen, 154 Ga. 397, 399 (114 S. E. 355); Henson v. Scoggins, 203 Ga. 540 (47 S. E. 2d, 643); McKay v. Balkcom, supra.

(a) Neither the petition for a writ of habeas corpus, nor the evidence of the defendant in support of the writ, shows that the original conviction of the defendant is void for any reason, and the trial court did not err in remanding the custody of the defendant to the sheriff.

Judgment affirmed.

All the Justices concur. Charles A. Wofford, G. A. Huddleston, and Harris, Henson, Spence & Gower, for plaintiff. Eugene Cook, Attorney-General, Wright Lipford, Solicitor- General, J. R. Parham, Assistant Attorney-General, and Myer Goldberg, for defendant.