
    23474.
    JONES v. BALKCOM, Warden.
   Almand, Justice.

George Charles Jones in a petition for a writ of habeas corpus against R. P. Balkcom, Warden of the State Penitentiary, alleged that he was in the custody of the warden by reason of a sentence of death imposed upon him by the Superior Court of Fulton County upon his conviction for murder. He alleged that he was being illegally held by the warden in that the Constitution of the State of Georgia “in no place specifies that the legislature is empowered to pass or enact any law which will forfeit the life of any citizen” and that the sentence of death based upon an Act of the legislature is repugnant to the Constitution of the State which guarantees protection of life and liberty. The warden responded with general demurrers and an answer. On the hearing, the judge sustained the demurrer and dismissed the petition. The case is here on appeal with error assigned on the order. Held:

1. “Where an application for the writ of habeas corpus affirmatively shows on its face that the restraint complained of is legal, the court before whom the writ is made returnable has the power, on general demurrer, to dismiss the writ and remand the applicant. In such instance the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of allegation in the petition.” (Citations omitted.) Kinman v. Clark, 185 Ga. 328, 330 (4) (195 SE 166).

2. There being no merit in the ground upon which petitioner asserts his detention is illegal, the court did not err in dismissing his petition. In re Kemmler, 136 U. S. 436 (10 SC 930, 34 LE 519); Whitten v. State, 47 Ga. 297; Ga. Const., Art. III, Sec. VII, Par. XX (1945) (Code Ann. § 2-1920).

Argued May 10, 1966

Decided May 26, 1966.

Wm. T. Brooks, for appellant.

Arthur K. Bolton, Attorney General, B. Daniel Dubberly, Jr., Deputy Assistant Attorney General, Lewis B. Slaton, Solicitor General, J. Walter LeCraio, for appellee.

Judgment affirmed.

All the Justices concur.  