Zant v. Owens

Supreme Court of Georgia

Zant v. Owens

260 S.E.2d 886, 244 Ga. 494, 1979 Ga. LEXIS 1306

CourtSupreme Court of Georgia

DecidedOctober 17, 1979

Docket35513

StatusPublished

Cited by2 cases

This text of 260 S.E.2d 886 (Zant v. Owens) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zant v. Owens, 260 S.E.2d 886, 244 Ga. 494, 1979 Ga. LEXIS 1306 (Ga. 1979).

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Opinion

Marshall, Justice.

The state appeals from the grant of the writ of habeas corpus to the appellant, whose petition attacked the validity of his conviction of escape.

"The lawful confinement of the [appellee] at the time of his escape was a necessary element of that offense ...” Dixon v. State, 234 Ga. 157 (215 SE2d 5) (1975). There was no fatal variance between the allegation in the indictment, that the appellee had been convicted of murder in Harris and Muscogee Counties, and the proof, that he had been convicted of murder only in Harris County,¹ since the only purpose of such allegation was to show lawful confinement, which was both alleged and proved without regard to the objected-to, admittedly erroneous allegation. See Berger v. United States, 295 U.S. 78, 82 (55 SC 629, 79 LE 1314) (1935) and its application in Georgia in cases commencing with De Palma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969). The erroneous allegation was therefore merely [495]*495surplusage, and was harmless error where the judge imposed the sentence, which was approved by the sentence review panel, pursuant to Code Ann. § 27-2511.1 (Ga. L. 1974, pp. 352, 358; 1977, pp. 1098, 1104), and where there was no direct appeal from the conviction of escape. See, e.g., Green v. Green, 231 Ga. 311 (201 SE2d 440) (1973) and cits.; Atkins v. Martin, 229 Ga. 815 (194 SE2d 463) (1972) and cit.

Submitted October 5, 1979 Decided October 17, 1979. Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, for appellant. William A. Owens, pro se.

Accordingly, the court erred in granting the writ of habeas corpus.

Judgment reversed.

All the Justices concur.

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Marshall, Justice.

The state appeals from the grant of the writ of habeas corpus to the appellant, whose petition attacked the validity of his conviction of escape.

"The lawful confinement of the [appellee] at the time of his escape was a necessary element of that offense ...” Dixon v. State, 234 Ga. 157 (215 SE2d 5) (1975). There was no fatal variance between the allegation in the indictment, that the appellee had been convicted of murder in Harris and Muscogee Counties, and the proof, that he had been convicted of murder only in Harris County,¹ since the only purpose of such allegation was to show lawful confinement, which was both alleged and proved without regard to the objected-to, admittedly erroneous allegation. See Berger v. United States, 295 U.S. 78, 82 (55 SC 629, 79 LE 1314) (1935) and its application in Georgia in cases commencing with De Palma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969). The erroneous allegation was therefore merely [495]*495surplusage, and was harmless error where the judge imposed the sentence, which was approved by the sentence review panel, pursuant to Code Ann. § 27-2511.1 (Ga. L. 1974, pp. 352, 358; 1977, pp. 1098, 1104), and where there was no direct appeal from the conviction of escape. See, e.g., Green v. Green, 231 Ga. 311 (201 SE2d 440) (1973) and cits.; Atkins v. Martin, 229 Ga. 815 (194 SE2d 463) (1972) and cit.

Submitted October 5, 1979 Decided October 17, 1979. Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, for appellant. William A. Owens, pro se.

Accordingly, the court erred in granting the writ of habeas corpus.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

260 S.E.2d 886, 244 Ga. 494, 1979 Ga. LEXIS 1306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zant-v-owens-ga-1979.

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