1. No person shall be discharged upon a writ of habeas corpus “where he is imprisoned under lawful process issued from a court of competent jurisdiction, unless in cases where bail is allowed and proper bail is tendered,” nor “in any other case where it appears that the detention is authorized by law.” Code, § 50-116 (1, 6).
2. On the trial of an application for habeas corpus for the release of one charged with crime, the only question to be determined is the legality of the detention. It is not the function of the writ of habeas corpus “to determine the guilt or innocence of one accused of crime.” Stephens v. Henderson, 120 Ga. 218, 220 (47 S. E. 498). See also State v. Asselin, T. U. P. Charlton, 184 (Ga. Rep. Ann. 66); Young v. Fain, 121 Ga. 737 (49 S. E. 731); Weatherly v. Beavers, 139 Ga. 122 (76 S. E. 853); Peebles v. Mangum, 142 Ga. 699, 701 (83 S. E. 522); Sanders v. Paschal, 186 Ga. 837 (199 S. E. 153).
3. It appeared in this case that the applicant for the writ was arrested on May 19, 1947, under two warrants, one for a misdemeanor, and one for a felony as described in the Code, § 5-9914 (failure to pay for agricultural products, cattle, hogs and other products purchased on cash sale); *83that on May 20, an application for the writ of habeas corpus was presented to the judge of the superior court of the county to which the warrants were returnable; and that at a hearing on May 24, the judge passed an order releasing the applicant from custody. To this judgment the respondent sheriff excepted. Under the rulings made above, the applicant could not properly be released from custody under either of such warrants merely upon evidence relating to guilt or innocence.
4. An arresting officer has no authority to accept bond from one arrested under a warrant for a felony, as described in the Code, § 5-9914, but should return the party arrested to the county in which the crime was alleged to have been committed, for examination before a judicial officer of that county and the fixing of bail by such officer in case of commitment. Code, §§ 27-209, 27-401, 27-407, 27-418, 27-901, 27-902; Lamb v. Dillard, 94 Ga. 206 (21 S. E. 463); Weatherly v. Beavers, 139 Ga. 122 (supra); Burrow v. Southern Railway Co., 139 Ga. 733 (78 S. E. 125).
(a) As to the felony warrant, it appears that the applicant did not seek a commitment trial or the fixing of bond by any judicial officer, but sought absolute release and discharge on the ground that his detention was unlawful.
(b) While sheriffs and constables are authorized in misdemeanor cases to accept bail in such reasonable amounts as may be fair and just, provided the sureties “tendered and offered are approved by a sheriff of any county” (Code, § 27-902), the evidence did not show that any sureties were tendered or offered even as to the misdemeanor warrant. Furthermore, the mere failure or refusal of such an officer to accept bail would not authorize release without bail, where the detention is otherwise lawful.
5. Nor was the detention of the applicant shown to be unlawful by the additional fact that he had been arrested under a previous warrant and discharged therefrom on habeas corpus, it appearing that such previous warrant was issued for an offense different from that stated in either the misdemeanor or the felony warrant under which he was last arrested. For this reason, regardless of other questions, such previous discharge did not render the detention of the applicant under either of the last-mentioned warrants unlawful.
(a) The present case is distinguished by its facts from Perry v. McLendon, 62 Ga. 598, Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (43 S. E. 780, 61 L. R. A. 739), and Day v. Smith, 172 Ga. 467 (157 S. E. 639), and nothing was held in either of those cases contrary to any of the rulings made in the instant case.
6. Under the preceding rulings as applied to the pleadings and the evidence, the judge erred in releasing and discharging the applicant. In this view, it is unnecessary to pass on the assignment of error complaining of a ruling admitting in evidence a certified copy of the previous habeas corpus proceedings, since the result would be the same, with or without this evidence.
Judgment reversed.
All the Justices concur, except Head, J., who dissents, and Wyatt, J., who took no part in the consideration or decision oj this case.