Under the facts of the present case it was not error to remand the applicant to the custody of the sheriff.
27-210) makes it mandatory that officers arresting under warrants shall exercise reasonable diligence "in bringing the person arrested before the person authorized to examine, commit or receive bail and in any event to present the person arrested before a committing officer within 72 hours after arrest." The applicant's detention is illegal and in violation of the Act of 1956. He has not waived commitment, and has in no way waived his rights under the law. He is being held under a pretended charge of murder, "but if any warrant has been issued, he is unable to see the same, or to obtain a copy of the same." He prayed that the writ of habeas corpus issue and that upon the hearing "he be released and discharged from jail." The writ issued on June 9, 1964, directing the sheriff to produce the applicant before the judge of the superior court on June 15, 1964.
On the hearing the applicant testified that he was arrested on May 24, 1964, and has since been in jail; that he has not seen the warrant, and was not taken before a committing officer until June 11, 1964. On cross examination he admitted that he knew he was in jail for killing Bo Humphrey, and that the sheriff told him he had a warrant against him for shooting Rudolph Waller at the same time Humphrey was killed. He also testified that he did not remember the sheriff talking to him about a commitment hearing, that "I just asked him when could I get a bond."
The sheriff testified that Rudolph Waller was shot through both legs and was taken to the hospital; that the applicant asked about a bond, and that he told him, "we are going to give you a hearing," but that his main witness was in the hospital. Copies of the two warrants were introduced in evidence. They appear to have been issued on May 24, 1964. On the commitment hearing on June 11, 1964, on the warrant charging assault with intent to murder, the justice of the peace set a bond of $5,000. On the warrant charging murder the applicant was committed to the superior court without bond.
At the conclusion of the habeas corpus hearing the judge of the superior court remanded the applicant to the custody of the sheriff. The exception is to this judgment.
Able counsel for the applicant rests his application for habeas corpus upon the provisions of the Act of 1956 (Ga. L. 1956, p. 796; Code Ann. Supp. 27-210) which provides: "Every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit or receive bail and in any event to present the person arrested before a committing officer within 72 hours after arrest. The arresting officer shall notify the accused as to when and where the commitment hearing is to be held. The offender who is not notified of the time and place of the commitment hearing, before the hearing, shall be released."
Counsel insists that the General Assembly "intended, unequivocally, to put a definite limit on the time in which an arresting officer should take him before a committing officer," and that the hearing before the committing officer on June 11, 1964, was a "weak gesture to try to validate an illegal imprisonment." This contention, in effect, assumes a result not provided by the General Assembly. The first sentence of 1 of the 1956 Act (Code Ann. Supp. 27-210) imposes no penalty if the arresting officer fails to take the accused before a committing officer within 72 hours, nor is there any provision that the offender is to be released if no committal hearing was held within 72 hours.
The applicant claims to have requested the sheriff to fix a bond. This neither the sheriff nor a committal court (justice of the peace, see Code 27-401) had authority to do, unless the charge should be reduced to less than a capital felony. Murder being a capital felony, only the judge of the superior court could fix bail, and this is in every case a matter of sound discretion. Code 27-901; Lester v. State, 33 Ga. 192; Jernagin v. State, 118 Ga. 307 (45 SE 411). It is the duty of a court of inquiry simply to determine whether there is sufficient evidence to suspect the guilt of the accused. Code 27-407. Under the facts of the present case the sheriff may have erred in not having the applicant committed within 72 hours, but the applicant was not injured by not having an earlier committal hearing.
The second and third sentences of 1 of the 1956 Act (Code Ann. Supp. 27-210) are more vague, uncertain, and indefinite than the first sentence with reference to a committal hearing within 72 hours. These sentences state that the officer shall notify the accused when and where the commitment hearing is to be held, and that an offender not so notified shall be released. When shall such notice be given? Would thirty minutes before the hearing suffice, or should the notice be given thirty hours before the hearing? How shall the notice be given, in person by the arresting officer, or shall the notice be in writing? Counsel for the applicant was present at the committal hearing (as an observer), and it is not contended that the applicant was not given proper notice of the committal hearing held on June 11, 1964.
At the time of the habeas corpus hearing the applicant was held by the respondent under the order of June 11, 1964, of the committing officer binding him to the Superior Court of Putnam County on a charge of murder. "On the trial of an application for habeas corpus for the release of one charged with crime, the only question to be determined is the legality of the detention." Sanders v. Paschal, 186 Ga. 837 (199 SE 153). The applicant was not at the time of the habeas corpus hearing entitled to be released under the Act of 1956 (Ga. L. 1956, p. 796; Code Ann. Supp. 27-210), and the judgment remanding him to the custody of the sheriff was not erroneous.
Judgment affirmed. All the Justices concur.