Opinion
38143.
DECIDED JANUARY 7, 1982.
Habeas corpus. DeKalb Superior Court. Before Judge Henley.
Ronald James York, pro se. Robert E. Wilson, District Attorney, Susan Brooks, Assistant District Attorney, for appellee.
Petitioner here seeks habeas corpus on the ground that the warrantless search of his van and seizure of some of its contents violated his rights under the Fourteenth Amendment to the United States Constitution.
The habeas court held a hearing and denied relief to petitioner. The court made findings of fact and conclusions of law which amount to a finding of probable cause to arrest petitioner. There was no transcript of the hearing. Therefore, this court must assume that the evidence was sufficient to support the judgment. Hilliard v. Hilliard, 243 Ga. 424 ( 254 S.E.2d 372) (1979); Shaw v. Jones, 226 Ga. 291 ( 174 S.E.2d 444) (1970).
We construe the thrust of petitioner's complaint to be an attack on the validity of the arrest. The ground for the attack is that the arrest was the result of the fruits of an illegal search. The validity of the search remains open for consideration of the admissibility of evidence, but we do not find it to be a meritorious challenge to the arrest. "`The bare fact that a person is unlawfully arrested and brought before a court of competent jurisdiction wherein a charge is preferred against him according to its procedure, does not show such want of jurisdiction as would authorize his discharge on habeas corpus in advance of his trial.'" Carlin v. Nevil, 227 Ga. 359, 360 ( 180 S.E.2d 740) (1971), quoting Holder v. Beavers, 141 Ga. 217, 219 ( 80 S.E. 715) (1914).
Petitioner here has been afforded a preliminary hearing before a magistrate, as well as a hearing on his petition for habeas corpus. He has been indicted and is awaiting trial. We find that no circumstances exist which would allow him to challenge his custody at this stage of the proceedings, it being a general principle that ". . . habeas corpus should not anticipate trial in criminal cases, in the absence of exceptional circumstances. . . ." Jones v. Perkins, 245 U.S. 390 ( 38 S.C. 166, 62 LE 358) (1918).
Judgment affirmed. All the Justices concur.