109 Ga. 62 | Ga. | 1900
Lead Opinion
The grand jury of Paulding county returned an indictment against Moore, charging that, on a day named, he did in that county “unlawfully sell spirituous liquors, malt liquors, and other intoxicating liquors.” He entered a plea of guilty, and was sentenced. Subsequently he sued out a writ of habeas corpus, whereby he sought to be discharged from custody. In his application for the writ he alleged that the indictment was void, because based upon the act of September 5, 1883 (Acts of 1882-3, p. 570), prohibiting the sale of spirituous, malt, and other intoxicating liquors in the counties of Glascock and Paulding, and that this act was, for reasons alleged, unconstitutional. On the hearing the judge remanded the prisoner to custody, and of this he complains.
In Embry v. State, this day decided, ante, 61, the unconstitutionality of this statute was declared. As the indictment against Moore was evidently framed under this act, the sentence against him, though based upon a plea of guilty, was a mere nullity, and he ought to have been discharged. It seems to be now well settled that where one is indicted and tried under an unconstitutional statute, he may, even after final conviction and sentence, obtain his discharge from custody on a writ of habeas corpus. See Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, Ibid. 399; Ex parte Yarbrough, 110 U. S. 651; Ex parte Royall, 117 U. S. 241; In re Ziebold, 23 Fed. Rep. 791; In re Tie Loy, 26 Fed. Rep. 611; In re Ah Jow, 29 Fed. Rep. 181; In re Payson, 23 Kan. 757, 760; Ex parte Burnett, 30 Ala. 461; Ex parte Rollins, 80 Va. 314; Ex parte Rosen
Judgment reversed.
Dissenting Opinion
dissenting. We dissent from the opinion of the majority of the court in this case, upon the grounds set forth in our dissenting opinions in the cases of Papworth v. State, 103 Ga. 39, and O’Brien v. State, ante, 51.
