Summary
In Gary v. State, 241 S.C. 266, 127 S.E.2d 888, this Court held that a simple allegation of innocence does not set forth a prima facie case.
Summary of this case from State v. LilesOpinion
17979
October 24, 1962.
John Henry Gary, of Columbia, Appellant, Pro Se, cites: As to when the attorney for the State suppresses evidence, and knowingly presents false testimony to obtain conviction, the defendant is denied "due process" and should be discharged: 86 F. Supp. 382.
Messrs. Daniel R. McLeod, Attorney General, and Clarence T. Goolsby, Jr., Assistant Attorney General, of Columbia, for Respondents, cite: As to the trial Judge properly dismissing appellant's petition without a hearing: (S.C.) 126 S.E.2d 843; 185 S.C. 296, 194 S.E. 21; 171 Kan. 472, 233 P.2d 1066, 29 A.L.R.2d 699; 25 Am.Jur., Habeas Corpus, Sec. 27, p. 161; 96 Okla. Cr. 382, 256 P.2d 191, cert. den., 345 U.S. 753, 73 S.Ct. 871, 97 L.Ed. 1375; 39 C.J.S., Habeas Corpus, Sec. 26, p. 492; 227 F.2d 324; cert. den., 350 U.S. 1008, 76 S.Ct. 653, 100 L.Ed. 870; 39 C.J.S., Habeas Corpus, Sec. 29 (j), p. 519.
October 24, 1962.
In June, 1961, appellant was convicted of assault and battery with intent to kill and was sentenced to serve a term of three years. He is presently confined in the State Penitentiary under this sentence. In November of 1961 he filed a petition for a writ of habeas corpus, which was denied by the court upon the ground that the facts stated were insufficient. This appeal followed. We quote appellant's only exception, which fairly summarizes the allegations of his petition:
"That it was error for the lower court to deny issuance of a writ of habeas corpus where:
"1. Petitioner alleged that he was innocent:
"2. Petitioner alleged that he is in possession of after-discovered evidence; and
"3. Petitioner alleged that witnesses for the state testified falsely."
The petition is barren of any allegation of fact showing that appellant's restraint in the State Penitentiary is illegal. It thus fails to state a prima facie case and was properly dismissed without a hearing. 25 Am. Jur., Habeas Corpus, § 126; 39 C.J.S., Habeas Corpus, § 80c; Crosby v. State, S.C., 126 S.E.2d 843.
Affirmed.
TAYLOR, C.J., and MOSS, LEWIS and BUSSEY, JJ., concur.