This appeal is from a judgment denying relief in a habeas corpus proceeding to the appellant, a prisoner at the State Penitentiary, who is serving four consecutive sentences of 7, 2, 2, and 5 years, for violation of Code of 1933, § 26-3914. The trial judge made findings of fact and of law, concluding that the prisoner had been denied none of his constitutional rights and that he is serving legal sentences.
Enumeration of error 1 alleges denial of the right to a speedy trial in violation of Art. VI of the Constitution of the United States (Code § 1-806), and Art. I, Sec. I, Par. V of the Constitution of Georgia (Code Ann. §2-105).
"[Fjour factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: 'the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant,’ [United States v. Fay, 313 F2d 620, 623].”
Sullivan v. State,
To sustain the prisoner’s contention that there was a violation of his constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial, none of which was shown in this case. See Sanders v. United States, 416 F2d 194, 196 (cert. denied
Enumeration of errors 4 and 5 allege, as grounds, the denial of effective assistance of counsel at the trial and on the appeal of his criminal case.
*613 The prisoner was offered assistance of competent counsel, but refused it and stated that he would represent himself in the trial of the case, which he did. The court, however, directed the appointed counsel to sit with him during the trial, and counsel did this, affording the prisoner advice and counsel as requested by him.
The court appointed counsel to represent the prisoner on appeal. Counsel prepared and argued the motion for new trial and would have appealed the case had the prisoner not escaped.
These grounds are without merit.
Williams v. Gooding,
Enumeration of error 9 alleges that the trial court erred in denying the prisoner’s request for a copy of the trial transcript in his case for his use in preparing his habeas corpus petition. He did have a copy of the transcript during the preparation of his brief in the habeas corpus appeal, and referred to the transcript in briefing his case in this court.
The reversal of
Bassett v. Smith,
The cases of Lane v. Brown,
The record in the present case does not show that the prisoner was handicapped in preparing his habeas corpus petition by lack of copy of the transcript. His petition contains 30 allegations of error, some with subparagraphs. He makes no showing that, if he had had use of the trial transcript during preparation of his petition for habeas corpus, it would have been different in any way. There is no showing that failure to have a copy of the trial tran *614 script during preparation of the habeas corpus petition injured him. This ground is without merit.
Enumeration of error 8 complains of the ruling that a petitioner for habeas corpus is not entitled to compulsory process to obtain the testimony of his witnesses as required in criminal cases. Constitution, Art. I, Sec. I, Par. V (Code Ann. §2-105).
A habeas corpus proceeding is not a criminal prosecution
(Croker v. Smith,
The decision of the Supreme Court of the United States relied on by the prisoner, Washington v. Texas,
Enumerated errors 2, 3, 6, 7, and 10 complain of errors in the trial of the case. The writ of habeas corpus is not a substitute for a review to correct mere errors of law, and may not be used for another adjudication of the question of guilt or innocence of the accused. See
Bush v. Chappell,
Enumeration of error 11 makes the issue that the sentence is illegal because the punishment is in excess of that provided by statute.
The court erroneously charged the jury that the maximum punishment for the crime was 7 years. Sentences were imposed on the four counts of 7, 2, 2, and 5 years. The sentences on three of the counts are within the limit fixed by the statute. Code of 1933, § 26-3914. The prisoner had the right of review as to the erroneous instructions regarding punishment, but was an escapee during the time for review. Habeas corpus can not be used to review instructions to the jury.
Shoemake v. Whitlock,
The sentence of 7 years exceeds the maximum provided by statute and is illegal. This will not result in the prisoner’s discharge under this sentence, but will require that he be returned to the court where he was sentenced in order that a legal sentence may be imposed upon him.
Littlejohn v. Stells,
Direction is given that a new trial be granted on the sole issue of punishment as to the count on which the prisoner was sentenced to 7 years. Compare:
Miller v. State,
Judgment affirmed in part; reversed in part with direction.