Opinion
41358.
SUBMITTED JUNE 8, 1965.
DECIDED JUNE 15, 1965.
Attempted burglary. Gordon Superior Court. Before Judge Davis.
Harbin M. King, for plaintiff in error.
Jere F. White, Solicitor General, contra.
Where a prisoner obtains his freedom by writ of habeas corpus, because he was denied the right of counsel when originally convicted, he does not obtain a release exonerating him from the charges for which he was tried, but the effect of such release is to set aside any plea, verdict, sentence, etc., that may have been entered in the case and he may then be arraigned as though no prior trial, etc., had taken place.
SUBMITTED JUNE 8, 1965 — DECIDED JUNE 15, 1965.
Jack Patton was indicted and convicted under an indictment charging him with attempted burglary. Thereafter, as a result of a petition for habeas corpus, he obtained his freedom because he was denied the right of counsel at such trial. After obtaining his release he was again tried under the same indictment but before arraignment entered a plea in bar based upon the former verdict and sentence under such indictment. The State made a counter showing and the plea was overruled. Thereafter, the plaintiff was convicted and his motion for new trial, based on the usual general grounds only, was overruled and he now assigns error on the judgments adverse to him.
1. In the recent case of Fair v. Balkcom, 216 Ga. 721, 728 ( 119 S.E.2d 691), after deciding that a writ of habeas corpus should have been granted because the prisoner had been denied the right of counsel, the Supreme Court held: "The petitioner is not entitled to be released. He must face the charges against him. He is hereby remanded to the custody of the respondent prison warden, who is hereby ordered to deliver him to the custody of the Sheriff of Early County, Georgia, for further proceedings in the superior court of that county. Let the plea of guilty be withdrawn; let the judgment and sentence of the Superior Court of Early County against this petitioner be vacated and set aside; and let the accused be arraigned as though no plea had been entered." Accordingly, the contention of the defendant in the present case that he could not be tried after having obtained his release by writ of habeas corpus because such would be double jeopardy is without merit and the trial court did not err in overruling his plea in bar based on the prior trial.
2. The evidence adduced on the trial of the case authorized the jury to find that the defendant and another broke a window in an attempt to gain entrance into the prosecutor's place of business before being interrupted by the prosecutor. There was also evidence that burglary tools were found nearby. The evidence authorized the verdict and the trial court did not err in overruling the defendant's motion for new trial based on the usual general grounds only.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.