151 Ga. 706 | Ga. | 1921
Lead Opinion
Edwin Blackstone was -indicted, tried and convicted of a misdemeanor, under an act approved August 17, 1918 (Acts 1918, p.'275), known as an act relating to venereal diseases. The particular provision of the act alleged to have been violated was as follows.: “It shall be unlawful for any one infected with these diseases, or any of them, to expose another to infection.” When the case was called for trial in the lower court the defendant filed a demurrer to the indictment, attacking the act of 1918 as unconstitutional and void for a number of reasons set out in the demurrer. The demurrer was overruled, and this judgment was unexcepted to. The case proceeded to trial, and the defendant was convicted and sentenced by the court to imprisonment in the chain-gang for a period of six months. The defendant made a motion for new trial, which .was dismissed on the movant’s own motion. In the present case Blackstone filed his petition for habeas corpus against Oreen Nelson, warden of the chain-gang of Tift county, alleging
The plaintiff relies upon the case of State Board of Medical Examiners v. Lewis, 149 Ga. 716 (102 S. E. 24), as sustaining his proposition that the judgment overruling his demurrer to the indictment is not binding in this case; but the facts of that case are different from the present one. In the present case there has been a solemn adjudication of tbe question raised by the demurrer that the act of 1918, supra, was not unconstitutional for the reasons alleged in the demurrer, which reasons are the same as set up in the present petition for habeas corpus; and that judgment was unexcepted to, and is therefore the law of the case. In such circumstances the defendant is bound by the former judgment, which has never been reversed (compare Griffin v. Eaves, 114 Ga. 65, 66, 39 S. E. 913), and he can not now substitute the writ of habeas corpus for a motion for new trial, or other similar remedial procedure to be used as a remedy for the review of errors alleged to have been committed by the trial court. Harrell v. Avera, 139 Ga. 340 (77 S. E. 160). Only in cases where the judgment of conviction is void can it be attacked by habeas corpus. The plaintiff has had his day in court, .where it was adjudged that the act which he now attacks for the second time as being unconstitutional was constitutional and valid. In the cases relied on by him no attack was made on the statute under which the defendants were convicted, as being void, as in the present case, and no judgment was rendered in those cases holding that the statute was valid. The defendant had an available remedy, by motion for new trial (which he voluntarily withdrew), of testing the constitutionality of the act of 1918; and having failed to pursue the remedy which
Under the pleadings and the evidence in the case we see no error in the judgment remanding the plaintiff to the custody of the warden of the chain-gang of Tift county.
.Judgment affirmed.
Concurrence Opinion
concur in the judgment of affirmance, on the ground that the law is not unconstitutional for any •of the reasons assigned.
