O.C.G.A. § 9-14-17 (2019)
Discharge for defect in affidavit, warrant, or commitment
If the person in question is detained upon a criminal charge and it appears to the court that there is probable cause for his detention, he shall not be discharged for any defect in the affidavit, warrant, or commitment until a reasonable time has been given to the prosecutor to remedy the defect by a new proceeding. (Laws 1808, Cobb’s 1851 Digest, p. 856; Code 1863, § 3926; Code 1868, § 3949; Code 1873, § 4025; Code 1882, § 4025; Penal Code 1895, § 1227; Penal Code 1910, § 1308; Code 1933, § 50-117.)
Annotations
JUDICIAL DECISIONS Editor’s notes. - Article 2 of this chapter now provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of a sentence of a state court of record, expanding the scope of habeas in such cases. See O.C.G.A. §§ 9-14-40 and 9-14-41. Commitment must be void to authorize habeas. - Writ of habeas corpus cannot be employed to correct errors or irregularities in commitment hearing before justice of the peace but the judgment committing the defendant must be absolutely void for the writ to issue. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939). Failure to return abstract of evi-
dence to superior court. - While it was the absolute duty of the justice of the peace to cause an abstract of all the evidence to be made and return the abstract to the superior court, failure to comply with such duty did not so vitiate the hearing and commitment as to render them absolutely void so as to authorize the grant of a writ of habeas corpus. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939). Cited in Rhodes v. Pearce, 189 Ga. 623, 7 S.E.2d 251 (1940); Stynchcombe v. Hardy, 228 Ga. 130, 184 S.E.2d 356 (1971); Treadaway v. Baker, 241 Ga. 95, 243 S.E.2d 41 (1978); Treadaway v. Baker, 243 Ga. 354, 254 S.E.2d 327 (1979).
RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 33, 102, 156, 164. C.J.S. - 39A C.J.S., Habeas Corpus, § 337. ALR. - Discharge on habeas corpus in federal court from custody under process
of state court for acts done under federal authority, 65 ALR 733. Illegal or erroneous sentence as ground for habeas corpus, 76 ALR 468. Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 ALR 160.