
    17979
    John Henry GARY, Appellant, v. The STATE of South Carolina and W. M. Manning, Superintendent, South Carolina State Penitentiary, Respondents.
    (127 S. E. (2d) 889)
    
      
      John Henry Gary, of Columbia, Appellant, Pro Se,
    
    
      Messrs. Daniel R. McLeod, Attorney General, and Clarence T. Goolsby, Jr., Assistant Attorney General, of Columbia, for Respondents,
    
    October 24, 1962.
   Brailsford, Justice.

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.  