Thе petitioner in this case entered pleas of guilty in the Superior Court of McIntosh County on December 8, 1965, to the offense оf robbery by open force and violence with an offensive weapon, and to the offense of kidnapping. He was sеntenced to life imprisonment on the robbery indictment and to four years in prison to run concurrently with the robbery sentence оn the kidnapping charge. In November 1968, he filed in the Superior Court of Tattnall *417 County a petition for habeas corpus. His petition came on for hearing on January 29, 1969, and after hearing evidence the court rendered a judgment remanding the prisonеr to the custody of the Warden of the State Penitentiary. Petitioner appealed from that judgment and before this court he enumerates four grounds of error.
1. The evidence adduced upon the trial of this case consisted of the testimony of thе petitioner, the testimony of the judge before whom the pleas of guilty were entered, the testimony of the then solicitor gеneral, who is now Judge of the Superior Court of McIntosh County, and the transcript of testimony adduced in a hearing before the U. S. District Court for the Southern District of Georgia, Savannah Division, on April 24, 1967, which was introduced pursuant to agreement of the parties. The appellant’s first contention is that the trial judge’s refusal to continue or postpone the trial in order to give appellant the right to adequately defend the charges against him abridged his right to benefit of counsel guaranteed to him by Art. I, Sec. I, Pars. Ill and V of the Constitution of Georgia (Code Ann. §§ 2-103 and 2-105) and by the 14th Amendment to the Federal Constitution. The evidence as to whether the court refused to grant the applicant a continuance was, to say the least, conflicting. Counsel who represented the aрplicant and who advised him to plead guilty testified that he,, upon being appointed by the court to represent the defеndant, immediately moved for a continuance. He did not testify that the continuance was refused. On the other hand the judge before whom the cases were heard testified that in cases involving crimes of a serious nature like those with which the defendant wаs charged, it was his unvarying practice to grant to appointed counsel a continuance upon motion therefоr being made. He testified that a motion for a continuance was not made in the cases, and on cross examination hе testified that he granted time to counsel to confer with his client, “but so far as a formal motion for continuance, no, it wasn’t mаde.” The judge of the superior court before whom the habeas corpus proceeding was heard was not bound by the tеstimony of the lawyer who represented the accused at the time the pleas of guilty were entered, but had a discretiоn to determine which witnesses he would believe and to what testimony he would give credit. He was authorized to find from the testimony of the trial *418 judge that no motion for continuance was made, and under these circumstances his finding that the trial judge did not refuse to grant a continuance was authorized.
2. Petitioner’s second contention before this court is that the constitutional guaranty of benefit of counsel was abridged because he was not offered or allowed counsel upon arrest or upon indictmеnt in violation of Art. I, Sec. I, Par. V of the Constitution of the State of Georgia
(Code Ann.
§ 2-105). The assistance of counsel is one of the essеntials of due process, and the accused is entitled to this assistance at every critical stage in a criminal prosecution. Hamilton v. Alabama,
3. Petitioner next contends that his pleas of guilty were not freely and voluntarily entered. The record shows that the pleas were entered by his attorney in open court in his presence and that he made no protest that thеy were not his pleas. The attorney who represented him testified as to the investigation which he made and as to the advice which he gave the accused with respect to the choices open to him. The mere fact that an acсused in entering a plea of guilty to a capital offense does so because it appears to him to be the best of one or more hard or poor alternatives, does not render such plea involuntary. As was said in the recent case of
Smith v. Fuller, 223
Ga. 673, 675 (
4. The fact that the accused was held for sevеral days without a commitment hearing in no way affects the legality of his present detention, which is the only issue in a habeas cоrpus case. As was said in
Johnson v. Plunkett,
Judgment affirmed.