1. "It is well settled by decisions of this court that the constitutional right of counsel does not apply in a habeas corpus proceeding, which is not a criminal prosecution, and the Sixth Amendment to the United States Constitution (Code § 1-806), and Art. I, Sec. I, Par. V of the Constitution of Georgia (Code Ann. § 2-105), providing that in all criminal prosecutions the accused shall have the privilege and benefit of counsel, have no application in this case. See Croker v. Smith, 225 Ga. 529 (1) (169 SE2d 787); Cash v. Smith, 226 Ga. 318 (3) (175 SE2d 10).” Hatton v. Smith, 228 Ga. 378 (3) (185 SE2d 388).
2. No question being raised in the trial court before the hearing as to the prisoner’s inability to obtain a transcript of the prior criminal conviction, the enumeration of error seeking to raise such issue here is without merit. Compare Calhoun v. Caldwell, 228 Ga. 804 (3) (188 SE2d 498).
3. Under decisions exemplified by Patterson v. Caldwell, 229 Ga. 321 (191 SE2d 43), the conviction of the prisoner on several indictments of possession of forged checks, each check being separately alleged and described, and the sentences being made to run consecutively shows no ground for the grant of release on petition for writ of habeas corpus. See also Johnson v. Smith, 227 Ga. 611 (182 SE2d 101).
4. "A habeas corpus proceeding is not a criminal prosecution (Croker v. Smith, 225 Ga. 529 (169 SE2d 787); Cash v. Smith, 226 Ga. 318 (175 SE2d 10)), and the law does not require the court to subpoena witnesses at the request of the petitioner for habeas corpus. Neal v. Smith, 226 Ga. 96 (6) (172 SE2d 684).” Johnson v. Smith, 227 Ga. 611, 614, supra.
5. Where a separate hearing is held outside the presence of the jury and the court finds from the facts there adduced that statements made by the defendant were made only *442after an intelligent waiver of the right to counsel, etc., and where the same evidence of waiver is presented to the jury, it is not error to admit such statements on the trial of the defendant and the admission of such evidence is not ground for a writ of habeas corpus after conviction. As to the admissibility of such evidence see Sullivan v. State, 223 Ga. 643 (5) (157 SE2d 247).
Submitted July 10, 1972 Decided September 8, 1972. George M. Nolley, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.6. A ground of petition for writ of habeas corpus which seeks to have reviewed the sufficiency of the evidence on the trial wherein the defendant was convicted presents nothing for decision.
7. Under decisions of this court exemplified by Thornton v. State, 226 Ga. 837 (178 SE2d 193); Lee v. Smith, 227 Ga. 503 (181 SE2d 364) and Evans v. State, 227 Ga. 571, 576 (181 SE2d 845), the instructions to the jury on the prisoner’s trial relating to alibi show no error.
8. The enumeration of error complaining of prejudicial remarks made by the trial judge during his instructions to the jury is not supported by any argument or by any reference to such alleged prejudicial remarks in the court’s instructions to the jury. However, a review of such charge in its entirety discloses no such prejudicial remarks.
The trial court did not err in remanding the prisoner to custody.
Judgment affirmed.
All the Justices concur, except Hawes, Gunter and Jordan, JJ., who dissent.