¶1dissenting. I am in disagreement with the majority opinion on two essential grounds.
¶2Division 1 of that opinion asserts that the habeas corpus court did not determine whether the appellant had in fact been denied a commitment hearing. I think it was the duty of the habeas corpus court to determine whether the appellant was in fact denied a commitment hearing. If an accused seeks a commitment hearing, is denied a commitment hearing, and has not intelligently, knowingly, and voluntarily waived a commitment hearing, then such denial is, in my opinion, a denial of procedural due process of law.
¶3The majority opinion in Division 1 also makes the following unequivocal pronouncement: "The holding of a commitment hearing is not a requisite to a trial for commission of a felony.” I am in disagreement with this pronouncement because under the law of Georgia if an accused seeks a commitment hearing, and does not waive such a hearing, then such a hearing is a requisite for a criminal trial in this state. It is my position that where a commitment hearing was sought, not waived, and denied, a trial court is without jurisdiction to try the accused unless a grand jury indictment was returned within seventy-two hours after the arrest of the accused.
¶4I will attempt to explain my reasons for taking this position. In 1956 the General Assembly enacted a statute which conferred upon every accused and arrested person procedural rights that I consider to be mandatory upon the state in the absence of a waiver by the accused party. Ga. L. 1956, p. 796 (Code Ann. §§ 27-210, 27-212).
¶5Code Ann. § 27-210 provides as follows: "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 seventy-two hours after arrest. The arresting officer shall notify the accused as to when and where commitment hearing is to be held. The offender who is not notified of the time'and place of the commitment hear*438ing, before the hearing, shall be released.”
¶6Code § 27-212 provides that a person arrested without a warrant shall not be held in jail more than forty-eight hours unless the arrested person is presented before an officer authorized to receive an affidavit and issue a warrant.
¶7I consider these two requirements to be mandatory upon the state. They were enacted for the protection of all persons accused of crime and arrested within this state.
¶8With the exception of the case of Manor v. State, 221 Ga. 866 (148 SE2d 305), it seems to me that this court has totally ignored the meaning and the intention of this 1956 statute. See the cases cited in the majority opinion to the effect that the holding of a commitment hearing is not a requisite to a trial for commission of a felony. The majority opinion attempts to distinguish Manor v. State, but I can see no distinction between a "coerced waiver” and "no waiver at all.”
¶9The Manoropinion concluded as follows: "All the proceedings in this case beginning with the commitment hearing and including indictment, trial, verdict and sentence of the court are nugatory and are hereby declared null and void. The court is directed to quash the indictment, set aside the verdict and judgment; and the defendant must be furnished with counsel, if he is without counsel, and must be given a commitment hearing, if he desires such, and the case may then proceed through the processes of law of bringing him to trial by indictment of a grand jury.”
¶10A commitment hearing before a court of inquiry is a most valuable right to one accused of a crime in this state. Code § 27-403 provides that both the accused and the prosecutor shall be afforded a reasonable time to prepare for a commitment hearing. Code § 27-404 provides that a court of inquiry shall have power to compel the attendance of witnesses. Code Ann. § 27-405 provides that the court of inquiry shall hear all legal evidence "submitted by either party.” Code § 27-414 provides that the accused person, bound over or committed for trial, may apply to the committing officers or clerk of the trial court to which he is committed for trial and obtain subpoenas for such witnesses as he may deem material for his defense. Code § 27-422 provides: "No prisoner shall be discharged on a writ of habeas corpus because of informality in the commitment or of the proceedings prior thereto, provided the foregoing provisions of this chapter have been substantially complied with.”
¶11All of these statutes make a commitment hearing and the *439manner in which a commitment hearing is conducted a most valuable right to an accused person in the criminal procedure of this state. And where a commitment hearing is not knowingly, intelligently, and voluntarily waived by the accused person, and where a grand jury indictment is not returned against the accused person within seventy-two hours after his arrest, the failure of the state to hold a commitment hearing before a court of inquiry amounts, in my opinion, to a denial of due process of law under both the Georgia and Federal Constitutions. Code Ann. § 27-210 is a statutory mandate conferring a valuable procedural right upon an accused, and the denial of this right is to ignore and make meaningless "the law of the land.”
¶12I would reverse this judgment and direct the habeas corpus court to determine whether there was a knowing, intelligent, and voluntary waiver of a commitment hearing in this case. In any event, I do not subscribe to the majority opinion’s pronouncement that the holding of a commitment hearing is not a requisite to a trial for commission of a felony.
¶13My second objection to the majority opinion has to do with what is contained in the Eighth Division to the effect that "a habeas corpus hearing is not a criminal prosecution, and the law does not require the court to subpoena witnesses at the request of the petitioner for habeas corpus.” Since the enactment of the "Habeas Corpus Act of 1967” (Code Ann. §§ 50-101 and 50-127), I think that this is a rule or principle that is too rigid. In some cases I think that due process of law does require a habeas corpus court to subpoena witnesses that the habeas corpus court considers to be material and necessary for the applicant in submitting facts or evidence tending to substantiate his claim with respect to the unconstitutionality of his confinement and detention.
¶14The "Habeas Corpus Act of 1967” effected an expansion of state habeas corpus to include "many sharply-contested issues of a factual nature.” If a habeas corpus application does involve sharply-contested issues of a factual nature an incarcerated applicant, without the aid of counsel and without the right to subpoena witnesses and documents, cannot present his case, and the result is that the habeas corpus hearing is not adequate, meaningful, and fair. I do not subscribe to such a rigid rule. See my dissenting opinion in Sims v. Caldwell, 231 Ga. 377.
¶15I respectfully dissent.
¶16dissenting. I respectfully dissent from Division 1 of this court’s opinion and from the judgment affirming the trial *440court. The majority conclude that: "The habeas corpus court properly ruled that the appellant was not entitled to a commitment hearing.” Actually, the trial court made no factual determination as to whether the appellant was denied a commitment hearing. (Tr. p. 24). The ruling was that "even assuming (appellant) could substantiate his claim of denial of a commitment hearing,” this would not entitle him to relief.
¶17In my judgment, this was error and I would reverse the trial court with direction to conduct an additional hearing to determine if in fact the appellant was denied a commitment hearing and, if he were, whether such denial prejudiced the defendant at his subsequent trial.
¶18The theory of this court’s decision in Division 1 of its opinion is that since a commitment hearing is not "a requisite to a trial for the commission of a felony,” it was not error if the appellant failed to have such a hearing. I disagree with the reasoning used by the majority because, in my view, the denial of a commitment hearing to a defendant charged with a felony is a denial of a substantial right given him by law. In Manor v. State, 221 Ga. 866 (2) (148 SE2d 305), this court, in a unanimous decision written by then Associate Justice Mobley, held, "The denial of a commitment hearing, under the circumstances of this case, was error requiring the grant of a new trial, . . .” In that case, it appeared that the defendant was without the benefit of counsel and that the defendant’s purported waiver of a commitment hearing was the result of duress consisting of cruel and inhumane treatment inflicted upon him by those in whose custody he was being held. It also appeared in that case that the defendant was in the custody of the officers without a warrant for his arrest. As observed by Justice Mobley in his opinion for the court (p. 869), "A person accused of crime may waive a commitment hearing,” but the waiver was held to be ineffectual there because of the duress practiced upon the defendant. That decision recognizes: "A commitment hearing is a valuable right which the law gives to one accused of crime. Ga. L. 1956, p. 796 (Code Ann. § 27-210); Code § 27-401 et seq. A lawyer recognizes this fact, for this affords him an opportunity to make the state show its hand by putting up the evidence it has against the accused, which enables him to know what he has to defend against, as well as to protect his client against commitment without sufficient evidence.” Id. p. 868. See, also, Chaffee, Memorandum on The Detention of Arrested Persons and Their Production Before a Committing Magistrate, as appended to Hearings, House *441Committee on the Judiciary, 85th Cong., 2d Sess., Ser. 12, Pt. 1, at 257 (1958).
¶19All of the reasons stated are vital and meaningful to every defendant in a criminal case. The commitment hearing is the only formal discovery tool available to the defense in a criminal case in Georgia. See Rautenstrauch v. State, 129 Ga. App. 381 (1) (199 SE2d 613), where Chief Judge Bell, speaking for the Court of Appeals, recently restated the holdings of both that court and this court that: "In Georgia there is no statute nor any rule of practice allowing pretrial discovery and inspection of evidence, and possession of evidence, by defendant or his counsel.” Against the backdrop of this rule, it is easy to see how important a commitment hearing can be to a defendant in a criminal case.
¶20The appellant himself gave the reason he wanted a commitment hearing in the present case in compelling language. His reasons are found in a letter filed as a part of the record in Davis v. State, 229 Ga. 509 (192 SE2d 253). They are, in his words, as follows: "A commitment hearing was essentially necessary in this case because it would have given me an opportunity to get these witnesses’ testimony on record as an impeachment tool later at trial. Also, it would have been to my interest as well as serving the interest of justice to have this testimony on record at the earliest possible date after the alleged crime because recollections of witnesses are far more accurate shortly after a happening than it is two months later.”
¶21I might add in conclusion that the reasoning used by this court in the Manorcase, supra, is consonant with the view taken by the U. S. Supreme Court that a preliminary (commitment) hearing is a "critical” state in the state’s criminal process. See Coleman v. Alabama, 399 U. S. 1 (90 SC 1999, 26 LE2d 387), and Adams v. Illinois, 405 U. S. 278 (92 SC 916, 31 LE2d 202). If we fail to make this valuable right to a commitment hearing secure by our decisions we will remove it from the statute books as a right and cast it into the unprotected area of indulgences. To argue that one who is denied a commitment hearing may secure his release from unlawful detention by habeas corpus misses the point. The right to a commitment hearing is a substantial and important statutory right possessed by an accused in a criminal case in Georgia. Its efficacy depends, however, on the willingness of this court to enforce it. We have not done so by affirming the trial court in this case.