Opinion
26646.
ARGUED SEPTEMBER 15, 1971.
DECIDED OCTOBER 7, 1971.
Habeas corpus. Fulton Superior Court. Before Judge Etheridge.
Lewis R. Slaton, District Attorney, Carter Goode, Joel M. Feldman, for appellant.
Austin E. Catts, for appellee.
The sole question to be decided in a habeas corpus proceeding is the legality of the confinement at the time of the hearing.
ARGUED SEPTEMBER 15, 1971 — DECIDED OCTOBER 7, 1971.
On February 10, 1971, Tommy B. Hardy was arrested after a search (with a warrant) of his person disclosed the possession of a white powder wrapped in foil and in a package of cigarettes. A later analysis by the State Crime Laboratory disclosed the substance to be cocaine.
A commitment hearing was held and the prisoner bound over to the grand jury. He was unable to make bond and was put in jail. A copy of the written report from the State Crime Laboratory was forwarded to the officer who made the investigation, but the original did not reach the office of the district attorney and consequently no indictment was prepared to lay before the grand jury. On May 10, 1971, the present petition for a writ of habeas corpus was filed and upon the hearing the trial court discharged the prisoner and barred any further prosecution of the pending charge although it was stipulated that probable cause for the commitment was shown at the commitment hearing. The sheriff appealed.
The third grand jury since the prisoner's arrest was in session at the time of the hearing of the petition for habeas corpus and no contention is made that the discharge from custody under such circumstances was erroneous, and the only issue is whether the superior court could legally bar further prosecution of the pending charge.
1. The sole question to be decided in the habeas corpus proceeding was whether the confinement of the prisoner was legal at the time of the hearing. See Johnson v. Plunkett, 215 Ga. 353 (5) ( 110 S.E.2d 745), and citations; Ballard v. Smith, 225 Ga. 416 (4) ( 169 S.E.2d 329); Evans v. Perkins, 225 Ga. 48 (4) ( 165 S.E.2d 652). Habeas corpus proceedings cannot be used to test the legality of possible future imprisonment. See Crumley v. Head, 225 Ga. 246 (1) ( 167 S.E.2d 651).
In Williamson v. State, 1 Ga. App. 657 ( 57 S.E. 1079), it was held: "1. Where a person is arrested on a warrant charging him with bastardy, and, upon an investigation by a justice of the peace, is required to give the bond provided for in the Penal Code, § 1250 [§ 74-303], and, upon failure to give such bond, is bound over to appear before a court of competent jurisdiction to answer to the charge of bastardy, there is no charge or case against the defendant until an accusation, indictment, or presentment is preferred. 2. Consequently a person so bound for his appearance can not, as a matter of right, demand a trial or a discharge; an order entered on the minutes allowing such demand is a nullity, and it is not error to refuse at the succeeding term to grant an order discharging him."
In State v. Maurignos, T. U. P. Charlton 24, it was said that under the habeas corpus Act, 31 Carolus 2, Ch. 2, Sec. 7, which was adopted by our Constitution and laws enacted a person committed for felony could upon demand require indictment and trial at no later than the second term. In Shirah v. Boyd, 148 Ga. 263 ( 96 S.E. 337), a majority of the court refused to follow the superior court decision supra, and held that no demand could be made for trial prior to indictment.
"Referring to the effect of a demand for trial in the case of Denny v. State, 6 Ga. 491, Nisbet, J., said, in the opinion, that `Our Penal Code protects defendants from vexatious and oppressive delays, whilst, at the same time, the rights of the prosecution are guarded. By entry of the demand upon the minutes of the court, the State is notified of the defendant's intention to proceed to a trial, or be discharged, at a subsequent term. It can not be taken by surprise, for in all cases it has six months' notice.'" Stripland v. State, 115 Ga. 578, 581 ( 41 S.E. 987). While the terms in all counties are not now held at six month intervals, yet the reason for the rule still applies — the protection of the accused and the protection of the prosecution.
The General Assembly, further recognizing the need to protect both the accused and the prosecution, enacted Code § 50-117: "If the party shall be detained upon a criminal charge, and it shall appear to the court that there is probable cause for his detention, he shall not be discharged for any defect in the affidavit, warrant, or commitment, until a reasonable time shall have been given to the prosecutor to remedy the defect by a new proceeding."
Code § 27-1802 (Ga. L. 1971, p. 460) now provides for directed verdicts of not guilty in criminal cases, yet prior to such enactment verdicts of not guilty have been directed in criminal cases, but, inasmuch as the State could not appeal such a ruling, no review of the correctness of such a judgment has ever been possible, (see State v. Gossett, 214 Ga. 840, 108 S.E.2d 272), nor does the Act of 1971 provide for the review of such a directed verdict. However, such a situation does not permit the pardoning of a prisoner either prior to indictment or after conviction. See Neal v. State, 104 Ga. 509 ( 30 S.E. 858).
In the recent case of Almand v. Brock, 227 Ga. 586 ( 182 S.E.2d 97), it was held that a writ of prohibition would not lie to prevent a grand jury from doing its duty. Code § 59-304 provides: "Grand jurors are bound only to notice or make presentments of such offenses as may or shall come to their knowledge or observation after they shall have been sworn; nevertheless they have the right and power, and it is their duty as jurors to make presentments of any violations of the laws which they may know to have been committed at any previous time, which are not barred by the statute of limitations." The judgment in the present case prohibiting the future prosecution of the prisoner was in effect a writ of prohibition which was not authorized as to either the grand jury or the district attorney. That part of the judgment barring any future prosecution of the prisoner was error.
Judgment reversed. All the Justices concur.