Bush v. Chappell, 25406

• Court: Georgia Supreme Court
• Writing for the Court: MOBLEY; Earl Bush filed his post-conviction petition for writ of habeas corpus against the sheriff of Sumter County, who was deaining him under a sentence of twelve months imposed on him in the Civil and Criminal Court of Sumter County after his conv
• Citation: Bush v. Chappell, 171 S.E.2d 128, 225 Ga. 659 (Ga. 1969)
• Decision Date: 29 September 1969
• Docket Number: No. 25406,25406
• Parties: Earl BUSH v. Fred CHAPPELL, Sheriff, et al.

Page 128

171 S.E.2d 128

225 Ga. 659

Earl BUSH v. Fred CHAPPELL, Sheriff, et al.

No. 25406.

Supreme Court of Georgia.

Sept. 29, 1969.

Rehearing Denied Nov. 6, 1969.

Syllabus by the Court

1. There was no evidence to support the contention of the appellant that the judge hearing the habeas corpus petition was disqualified.

2. It is not the function of the writ of habeas corpus to determine the guilt or innocence of one accused of crime.

Earl Bush, pro se.

No appearance for appellee.

MOBLEY, Presiding Justice.

Earl Bush filed his post-conviction petition for writ of habeas corpus against the sheriff of Sumter County, who was deaining him under a sentence of twelve months imposed on him in the Civil and Criminal Court of Sumter County after his conviction for child abandonment. He asserted that this sentence was illegal and void because venue was not proved and the court had no jurisdiction or venue of the case. He further asserted that the Honorable T. O. Marshall, Judge of the Superior Court of Sumter County, may be prejudiced against him by reason of previous litigation, and should disqualify himself in the case. At the conclusion of the hearing the trial judge remanded the appellant to the custody of the sheriff, and the appeal is from this order.

1. The appellant enumerated as error the failure of the judge trying the habeas corpus case to disqualify himself. The appellant introduced no evidence to show the disqualification of the judge, and the judge stated that he was not disqualified, as far as he knew. There is no merit in tis assignment of error.

2. The appellant represented himself at the hearing, refusing the court's offer to appoint him an attorney. He introduced evidence to show that his children were in Terrell County, rather than in Sumter County, from November, 1966, through September 8, 1967, the latter date being the date the warrant charged that he abandoned his children.

The proof of venue is an essential element in proving guilt in a criminal case, and an assertion that venue was not proved is an assertion that the evidence was not sufficient to support the verdict. Davis v. State, 82 Ga. 205, 8 S.E. 184; Futch v. State, 90 Ga. 472(2), 16 S.E. 102.

It is not the function of the writ of habeas corpus to determine the guilt or innocence of one accused of crime. See Aldredge v. Williams, 188 Ga. 607(1), 4 S.E.2d 469; Sanders v. Aldredge, 189 Ga. 69(1), 5 S.E.2d 371; White v. George, 195 Ga. 465(1), 24 S.E.2d 787; Paulk v. Sexton, 203 Ga. 82(2), 45 S.E.2d 768; Buxton v. Brown, 222 Ga. 564(2), 150 S.E.2d 636. The Habeas Corpus Act of 1967 (Ga.L.1967, pp. 835-839; Code Ann. Chapter 50-1) has enlarged the scope of matters that will be considered on habeas corpus, but it does not authorize another adjudication of the question of the guilt or innocence of the accused. Code Ann. § 50-127(1). "The writ of habeas corpus is never a substitute for a review to correct mere errors of law. McKay v. Balkcom, 203 Ga. 790, 48 S.E.2d 453, and cases cited therein. It is an available remedy to attack a void judgment.' Sims v. Balkcom, 220 Ga. 7, 9(1), 136 S.E.2d 766; Moore v. Dutton, 223 Ga. 585, 157 S.E.2d 267.' Jackson v. Dutton, 223 Ga. 642(1), 157 S.E.2d 286. The sufficiency of the evidence to support a conviction is not reviewable by habeas corpus in the federal courts. Fulford v. Dutton, 5 Cir., 380 F.2d 16.

The remedy of the appellant was by direct appeal, if the venue of the crime with which he was charged was not properly established on his trial....