Kinman v. Clark

• Court: Georgia Supreme Court
• Writing for the Court: [185 Ga. 329] HUTCHESON, Justice.
• Citation: Kinman v. Clark, 185 Ga. 328, 195 S.E. 166 (Ga. 1938)
• Decision Date: 11 January 1938
• Docket Number: 12076.
• Parties: KINMAN v. CLARK, Warden.

195 S.E. 166

185 Ga. 328

KINMAN v. CLARK, Warden.

No. 12076.

Supreme Court of Georgia

January 11, 1938

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Application by S.W. Kinman for a writ of habeas corpus against A. A Clark, Warden. To review a judgment sustaining a motion to quash the writ and remanding the applicant to the custody of the warden, the applicant brings error.

Affirmed.

M. G Hicks, of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., John S. McClelland, Sol., and J. Walter LeCraw, all of Atlanta, for defendant in error.

Syllabus OPINION.

HUTCHESON, Justice.

S. W Kinman, by his attorney, made application to the superior court of Fulton county for the writ of habeas corpus, alleging that he is illegally detained in the Bellwood prison camp of said county; that he is advised and believes that the pretended cause of his detention is a judgment and sentence of the judge of the criminal court of said county, dated May 11, 1937, and based on an accusation 148302, in which petitioner is charged with the offense of simple larceny; that he is illegally detained for the following reasons: That he was brought before the court for trial on said accusation on May 11, 1937; that he was not permitted to plead to said charges; that he did not sign a waiver of any right he had under the law of Georgia, in that he did not waive a copy of said accusation or a list of witnesses who appeared against him; and that he was not given the benefit of counsel, 'all of which appears on the face of the original accusation' attached to and forming a part of the petition. The following appeared on the accusation: 'The defendant in the within accusation waives arraignment, list of witnesses, copy of accusation, and pleads guilty. This 11 day of May, 1937. John S. McClelland, Solicitor,' also the sentence of the court, 'Whereupon it is considered by the court * * * that the defendant be put to work and labor on the public works of the County of Fulton, or otherwise, as the commissioners of said County may direct, for the space of twelve (12) months,' etc., signed by the court and the solicitor on the same day as the plea of guilty. The affidavit to the petition states that the affiant attorney 'on oath says, that, in so far as it appears on the face of the original accusation as set out in the above petition, said facts are true, and that upon information obtained from other sources he believes all the recitals of fact contained therein to be true.' On the hearing the court sustained a motion to quash the writ, and remanded the applicant to the custody of the warden. To this ruling the applicant excepted. In his bill of exceptions he states 'that at the time of said hearing he was prepared to offer evidence to support the allegations contained in his petition for writ of habeas corpus.'

1. A writ of habeas corpus is not to be used as a substitute for appeal, writ of error, or other remedial procedure, McFarland v. Donaldson, 115 Ga. 567, 41 S.E. 1000; Harrell v. Avera, 139 Ga. 340, 77 S.E. 160; Smith v. Milton, 149 Ga. 28, 98 S.E. 607; Blackstone v. Nelson, 151 Ga. 706, 108 [185 Ga. 330] S.E. 114; Wells v. Pridgen, 154 Ga. 397, 114 S.E. 355; Strickland v. Thompson, 155 Ga. 125, 116 S.E. 593; Fleming v. Lowry, 173 Ga. 894, 162 S.E. 144; Etheridge v. Poston, 176 Ga. 388(5), 168 S.E. 25; Shiflett v. Dobson, 180 Ga. 23, 177 S.E. 681; In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207; Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351, and is the appropriate remedy only when the court is without jurisdiction in making the order, rendering the judgment, or passing sentence by virtue of which the party is imprisoned, so that such an order, judgment, or sentence is not merely erroneous, but is absolutely void, McFarland v. Donaldson, supra; Wells v. Pridgen, supra; Fleming v. Lowry, supra.

2. The general rule is that a judgment of a court having jurisdiction of the offense and the party charged with its commission is not open to collateral attack. Code, § 110-701; Andersen v. Treat, supra; Wells v....