Smith v. Milton

• Court: Georgia Supreme Court
• Writing for the Court: GEORGE, J.
• Citation: Smith v. Milton, 149 Ga. 28, 98 S.E. 607, 1235. (Ga. Mar 15, 1919)
• Docket Number: 1235.
• Decision Date: 15 March 1919
• Parties: SMITH v. MILTON, SHERIFF.

98 S.E. 607

149 Ga. 28

SMITH v. MILTON, SHERIFF.

No. 1235.

Supreme Court of Georgia

March 15, 1919

Syllabus by the Court.

Where an application for the writ of habeas corpus affirmatively shows on its face that the restraint complained of is legal the court before whom the writ is made returnable has the power, on general demurrer, to dismiss the writ and remand the applicant. In such instance the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of allegation in the petition.

One imprisoned under a bench warrant regular on its face and issued by a judge of competent jurisdiction will not be released on habeas corpus, because the grand jury that found the indictment on which the warrant issued was illegal.

A writ of error is the available remedy; the warrant not being void but merely voidable.

Error from Superior Court, Gilmer County; N. A. Morris, Judge.

Petition for writ of habeas corpus by Claude Smith against R. L Milton, Sheriff. General demurrer to petition sustained, and petition and writ dismissed, and petitioner remanded, and he brings error. Affirmed.

B. L Smith, of Blue Ridge, for plaintiff in error.

Herbert Clay, Sol. Gen., of Marietta, for defendant in error.

GEORGE J.

Claude Smith, averring that he was being illegally restrained of his liberty by R. L. Milton, sheriff and jailer of Gilmer county, presented to the judge of the superior court his petition for the writ of habeas corpus, alleging substantially the following:

Petitioner is held under and by virtue of three bench warrants issued by the judge of the superior court upon three separate indictments returned by the grand jury of said county at the May term, 1918, charging petitioner with murder, with public drunkenness, and with having in his possession a quantity of whisky. In August, 1916, the legally appointed and qualified jury commissioners of said county revised the jury lists of said county, as required by law, and the lists so revised contained the legally qualified grand and traverse jurors for said county for the two years next ensuing. In April, 1917, two of the jury commissioners having resigned, the judge of the superior court by order, removed the four remaining commissioners and appointed six other named citizens of said county. In May, 1917, in a mandamus proceeding brought by certain citizens and taxpayers of the county (to which petitioner was not a party) against the newly appointed commissioners, the judge of the superior court ordered a revision of the jury lists of said county, and the defendant commissioners, at the time named, proceeded to revise the lists as ordered. The persons serving as grand jurors at the May term, 1918, of said superior court were drawn from the box thus made up by the new board. Only eight of the persons who acted as grand jurors and returned the indictments against petitioner were in the jury box as legally made up by the old commissioners in August, 1916. The acts of the new board of commissioners are nugatory and void; the indictments against petitioner, as well as the bench warrants issued thereon, are likewise nugatory and void. The jury commissioners revised the jury lists, as required by law, in 1916, and the judge of the superior court of Gilmer county had no authority to order the revision in 1917. Copies of the several orders, of the mandamus proceeding, and of the indictments and warrants, were attached to the petition. The indictments and warrants were in all respects regular in form.

The sheriff answered, denying the illegality of the restraint, but admitting that petitioner was held under the warrants issued by the judge of the superior court upon the indictments returned by the grand jury as alleged. He also demurred generally to the petition for the writ, upon the ground that the allegations thereof affirmatively showed that the restraint was lawful.

The judge sustained the general demurrer, dismissed the petition and writ, and remanded the petitioner. He excepted, and contends that the court should have declined to consider the demurrer to the petition for the writ of habeas corpus, but should have determined the legality of the restraint upon the merits; the writ having issued and he having been brought before the court to receive its judgment. Simmons v Georgia Iron, etc., Co., 117 Ga. 305, 43 S.E. 780 ...