1. The writ of habeas corpus cannot be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors not affecting the jurisdiction of the court or rendering the judgment void. It is an appropriate remedy only when the court was without jurisdiction to render the judgment or sentence under which the petitioner is being restrained, so that such judgment or sentence is not merely erroneous, but is absolutely void.
2. Since both the trial court and the Court of Appeals had jurisdiction to deal with the plea of former jeopardy as they did in the original case, it necessarily follows that, whether the rulings and judgments against the plea were correct or incorrect, they were not absolutely void so as to render them subject to collateral attack by habeas corpus; and this is true regardless of whether the right to assert the defense of former jeopardy in a State court is one that comes within the due-process clause of the Fourteenth Amendment to the Constitution of the United States. Nor is the case altered by the fact that a petition for certiorari was denied by this court.
3. The court did not err in dismissing the petition for the writ of habeas corpus, or in remanding the petitioner to custody.
No. 15778. MAY 13, 1947. *Page 199 Roy Hall presented his petition for the writ of habeas corpus against Harry Scoggins, Sheriff, to Honorable J. Harold Hawkins, Judge of the Superior Court of Cobb County. The petition was dismissed on general demurrer, and the petitioner excepted. The allegations of the petition were substantially as follows:
The respondent is restraining the petitioner and illegally depriving him of his liberty by reason of the following facts: The petitioner has been denied due process of law, under the Fourteenth Amendment to the Constitution of the United States, by the State of Georgia, in twice prosecuting and convicting him for the same offense, to wit: On July 14, 1945, he was tried in the Superior Court of Gwinnett County for the alleged offense of violating the State Motor Vehicle Law as contained in the Code, § 68-301, prohibiting the operation of motor vehicles of a specified classification in excess of 55 miles an hour. The petitioner entered a plea of guilty, and was sentenced to pay a fine of $200 or serve for 12 months on the public works of the county. He paid the fine and was discharged by the sheriff.
Thereafter, on July 23, 1945, the petitioner was arraigned in the City Court of Decatur for alleged violation of the same statute in the County of DeKalb, and upon his arraignment filed a plea of former jeopardy, setting up that the offense of which he was then charged by accusation in that court covered the same continuous uninterrupted act (of driving an automobile in excess of 55 miles an hour) for which he had previously been convicted in the Superior Court of Gwinnett County. And the petitioner invoked the provision in the Constitution of this State, that "No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial." Code, § 2-108.
The trial court overruled the petitioner's plea of former jeopardy, and he was thereafter convicted by a jury under such accusation, and sentenced to serve a term of 6 months in jail, 12 months on the public works of DeKalb County, and to pay a fine of $1000. The ruling and judgment of the trial court, overruling such plea of former jeopardy, was thereafter brought to the Court of Appeals of Georgia, and was affirmed by that court. *Page 200 The Supreme Court of Georgia denied a certiorari, three of the Justices dissenting.
The petitioner shows that, in violation of the above-quoted provision of the Georgia Constitution, he has been twice convicted by the State of Georgia for the same continuous uninterrupted violation of the law of this State, as set forth above, which violation extended into two counties, namely, Gwinnett and DeKalb Counties, divisions of the State of Georgia, and there are of force in both counties the laws of the State of Georgia only.
The Code, § 27-1103, provides: "When an offense shall be committed on the boundary line of two counties, it shall be considered and adjudged to have been committed in either county, and an indictment for such offense may be found and tried, and conviction thereon may be had, in either of said counties." Said single, continuous, uninterrupted offense for which the petitioner was twice sentenced by the same sovereign, the State of Georgia, occurred on the boundary of DeKalb and Gwinnett Counties in this State.
By reason of the foregoing facts, the petitioner has been denied due process of law, under the Fourteenth Amendment to the Constitution of the United States, by the State of Georgia, in twice prosecuting and convicting him for the same offense, in violation of its own Constitution. Georgia was without jurisdiction to try the petitioner again for the same offense, and in so doing deprived him of due process of law under the Fourteenth Amendment.
The exception is to an order dismissing the petition and remanding the petitioner to custody. The fact that this court denied a petition for certiorari to review the decision of the Court of Appeals, which affirmed the judgment "overruling" the plea of former jeopardy, cannot be taken as an adjudication by this court as to the correctness or incorrectness of such decision; nor does the fact that some of the Justices dissented from such denial necessarily indicate anything more than that the Justices who dissented thought that the question was a *Page 201 doubtful one, and was at the same time one of such public gravity and importance that it should be inquired into and determined by a decision of this court. See Rules 52, 54; Code, Ann. Supp., §§ 24-4556, 24-4558.
Nor does the present petition for the writ of habeas corpus by its allegations, although averring a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States, require a decision as to whether the legal contention made in such plea of former jeopardy was sound or unsound. This is true for the reason that the petition is a mere collateral attack upon the ruling and the judgment or sentence under which the petitioner is being held, and in no view of the case could it be said that the sentence was void and subject to such attack.
The writ of habeas corpus cannot be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors not affecting the jurisdiction of the court or rendering the judgment void; nor can it be used as a second appeal or writ of error for such purpose. It is an appropriate remedy only when the court was without jurisdiction to render the judgment or sentence under which the petitioner is being restrained, so that such judgment or sentence is not merely erroneous, but is absolutely void. Kinman v. Clark, 185 Ga. 328,329 (195 S.E. 166); Aldredge v. Williams, 188 Ga. 607 (4 S.E.2d 469); Sanders v. Aldredge, 189 Ga. 69 (5 S.E.2d 371); Ex parte Bigelow, 113 U.S. 328 (5 Sup. Ct. 542,28 L.ed. 1005). In re Swan, 150 U.S. 637 (1, 2) (14 Sup. Ct. 225,37 L. ed. 1207); Frank v. Mangum, 237 U.S. 309 (35 Sup. Ct. 582,59 L. ed. 969). "It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. . . The principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction." Frank v. Mangum, supra, pp. 333-4.
Since both the trial court and the Court of Appeals had jurisdiction to deal with the plea of former jeopardy as they did in the original case, it necessarily follows that, whether the rulings and judgments against the plea were correct or incorrect, they were not absolutely void so as to render them subject to collateral *Page 202 attack by habeas corpus. Nor is the case altered by the fact that a petition for certiorari was denied by this court. Holder v.Beavers, 141 Ga. 217 (2) (80 S.E. 715); Andrews v.Aderhold, 201 Ga. 132 (39 S.E.2d 61); Ex parte Ulrich (C. C. A.), 43 Fed. 661, reversing the district court, 42 Fed. 587; Beard v. Sanford, 105 F.2d 141; Caballero v. Hudspeth, 114 F.2d 545; Velazquez v. Sanford, 150 F.2d 401 (4). Notwithstanding it was claimed in the Ulrich case, supra, as here, that a plea of former jeopardy had been erroneously overruled and the Fourteenth Amendment was invoked, it was held by the Circuit Court of Appeals that the writ of habeas corpus would not lie, the remedy being a direct appeal or writ of error to review the judgment, and not a collateral attack.
It seems that the Supreme Court of the United States has never passed upon the question as to whether the right to assert former jeopardy as a defense in a State court is included among the rights that are guaranteed by the Fourteenth Amendment. In Amrinev. Tines, 131 F.2d 827, cited for the plaintiff in error, it was said that, "unlike the fundamental right to assistance of counsel granted by the Sixth Amendment to the Constitution, the right not to be twice placed in jeopardy for the same offense, granted by the Fifth Amendment, is not generally regarded as a member of that family of fundamental rights coming within the scope and protection of the due process and privileges and immunities clause of the Fourteenth Amendment." It was further stated that the courts which have had occasion to consider the question have deliberately refrained from completely closing the door to such Federal inquiry, being content with the answer that double jeopardy did not factually exist (in the particular cases) when measured by the Federal rule. Numerous decisions of the Supreme Court of the United States were cited. The court also in that case (Amrine v. Tines) left the question open, stating, "We find it proper to do likewise," and holding that upon the facts of the case double jeopardy was not shown.
While the court elsewhere stated, in effect, that since the right granted and sought to be vindicated was founded in the Federal Constitution, the question whether the applicant had, by his trial and conviction, been twice placed in jeopardy for the same offense, should be governed by the Federal law and not by the law of the *Page 203 State in which he had been convicted, yet in view of the opinion as a whole, we do not think that the latter statement was intended as a ruling upon the very question which had previously in the same opinion been expressly left open. See also, in this connection, Powell v. Alabama, 287 U.S. 45, 68-69 (53 Sup. Ct. 55, 77 L. ed. 158, 84 A.L.R. 527); State v. Felch, 92 Vt. 477 (105 A. 23).
Accordingly, neither do we, in the present case, deem it necessary to decide whether the Fourteenth Amendment comprehends the defense of former jeopardy as one that must be recognized by the State law, for, even assuming that this question should be answered in the affirmative, the State of Georgia does recognize the principle (Code, § 2-108); and so a mere error as to its applicability or inapplicability in a particular case by a court of competent jurisdiction would not give the right to habeas corpus under the Fourteenth Amendment. Compare Bergemann v. Backer, 157 U.S. 655 (6) (15 Sup. Ct. 727, 39 L. ed. 845); Central Land Co. v. Laidley, 159 U.S. 103 (2) (16 Sup. Ct. 80,40 L. ed. 91); Worcester County Trust Co. v. Riley, 302 U.S. 292 (3) (58 Sup. Ct. 185, 82 L. ed. 268); Emmons v. Smitt, 149 F.2d 869 (5); Duane v. Merchants' Legal Stamp Co.,231 Mass. 113 (120 N.E. 370).
Nothing said in this opinion is intended as a ruling or intimation that the judgment overruling the plea of former jeopardy was in fact erroneous, for, as we have stated, the petition in the instant case does not require a decision upon that question. The case differs materially in its legal aspects from the Herndon case, 182 Ga. 582 (186 S.E. 429), 301 U.S. 242 (57 Sup. Ct. 732, 81 L. ed. 1066), 184 Ga. 613 (192 S.E. 387), where the statute on which the prosecution was founded was assailed as being unconstitutional.
The court did not err in dismissing the petition for habeas corpus, or in remanding the petitioner to custody.
Judgment affirmed. All the Justices concur.