White v. Hornsby

• Court: Georgia Supreme Court
• Writing for the Court: JENKINS, Justice.
• Citation: White v. Hornsby, 191 Ga. 462, 12 S.E.2d 875 (Ga. 1941)
• Decision Date: 14 January 1941
• Docket Number: 13454.
• Parties: WHITE v. HORNSBY, Chief of Police.

12 S.E.2d 875

191 Ga. 462

WHITE v. HORNSBY, Chief of Police.

No. 13454.

Supreme Court of Georgia

January 14, 1941

F Joe Turner, Jr., of Atlanta, for plaintiff in error.

J C. Savage, Edwin L. Sterne, J. C. Murphy, and Frank A Hooper, Jr., all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

After a conviction, in the recorder's court of Atlanta, for the violation of a city ordinance, the defendant, without proceeding by certiorari to upset the judgment, brought this petition for habeas corpus in the superior court, to attack the ordinance as unconstitutional and void. The order of the superior court judge denied the writ, on the grounds that certiorari was the proper remedy, and that the applicant had introduced no evidence whatever to show that the ordinance was arbitrary, unreasonable, and void; the court holding that it would not declare the ordinance unconstitutional 'from pleading alone.' While the petition itself does not disclose whether the petitioner made his constitutional question in the recorder's court, so as to render him subject to a plea of res adjudicata with a preclusion of review by habeas corpus, the order of the superior court recites that, while the petitioner 'introduced no evidence whatsoever,' evidence 'was introduced by respondent in support of a plea in bar, respondent contending the issues here are res adjudicata.' This contention was adjudicated against the respondent, but at the same time his contention 'that applicant should proceed by certiorari' was 'sustained.'

1. It is the firmly established general rule that the writ of habeas corpus cannot be used as a substitute for a writ of error or other remedial procedure to correct errors of law of which the defendant has had opportunity to avail himself. Sanders v. Aldredge, 189 Ga. 69, 5 S.E.2d 371; Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469, and cit.; Kinman v. Clark, 185 Ga. 328, 330, 195 S.E. 166; Shiflett v. Dobson, 180 Ga. 23, 26, 177 S.E. 681, and cit. The recognized exception that 'one indicted and tried under an unconstitutional statute may, even after final conviction, obtain his discharge from custody on a writ of habeas corpus' (Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116, and cit.), is itself qualified by the rule that 'where the accused, upon the trial, brings in question the validity of the statute under which he had been indicted, and the point is decided against him, it then, * * *becomes res adjudicata, and cannot be reviewed collaterally on habeas corpus.' Griffin v. Eaves, 114 Ga. 65, 67, 39 S.E. 913, 914; Blackstone v. Nelson, 151 Ga. 706(2), 108 S.E. 114; McDonald v. State, 126 Ga. 536, 55...