¶1dissenting.
¶2I disagree with the majority and would affirm the judgment of the Court of Appeals.
¶3My basic disagreement with the majority is that I think a preliminary hearing is a "required step” in a felony prosecution in Georgia if the accused is incarcerated for more than 72 hours before indictment, if the accused seeks a preliminary hearing before pleading to the indictment, and if the accused, of course, does not waive a preliminary hearing. I concede that under Georgia’s procedure, a person not imprisoned until after indictment has no right to a preliminary hearing.
¶4*56My position is that an unindicted, imprisoned person must be accorded a preliminary hearing; such a hearing is required by statutes enacted by the General Assembly; such a hearing is a valuable right accorded to an accused person by Georgia’s statutes; and such a hearing is both a "required step” and a "critical stage” in Georgia’s criminal procedure.
¶5This was the position that I took in my dissenting opinion in Phillips v. Stynchcombe, 231 Ga. 430, 437 (202 SE2d 26) (1973). I adhere to that position. The case at bar places the contrary viewpoints in sharp focus, because here the respondent was imprisoned for 28 days without a preliminary hearing and without an indictment being returned; Before pleading to the indictment the respondent applied in writing to the trial court for a preliminary hearing. He did not waive his statutory right to a preliminary hearing, and the trial judge denied this statutory right and placed the respondent on trial. This case presents a vivid example of what I call "an arbitrary denial by the State of procedural due process of law” mandated by the Fourteenth Amendment to the United States Constitution. When a right is given by a state legislature, as is the case in Georgia in this instance, even though it is not a right guaranteed by the Fourth Amendment, the arbitrary denial of the statutory right violates the Due Process Clause of the Fourteenth Amendment.
¶6The Fourteenth Amendment provides that no state shall deprive a person of his liberty without due process of law. Code Ann. § 1-815. Procedural due process of law, as I understand the constitutional concept, relates to the procedural requirements that must be followed by the state in allowing it to regulate a person’s liberty or in allowing it to deprive a person of his liberty. And once a state by statute accords all persons a procedural right to which they are entitled in the regulation of their liberty by the state, an arbitrary denial of such procedural, statutory right to any person is a denial by the state of due process of law.
¶7A Georgia statute gave respondent a right to a preliminary hearing after his arrest. Ga. L. 1956,pp. 796, 797 (Code Ann. §§ 27-210, 27-212). This statute makes a *57preliminary hearing for an imprisoned person a "required step” in a criminal prosecution in Georgia. This statute and the provisions of Chapter 27-4 of the Georgia Code make a Georgia preliminary hearing a critical stage in a criminal prosecution insofar as an imprisoned, accused person is concerned.
¶8It is my view that the denial of a preliminary hearing by the trial court in this case was the arbitrary denial of a statutory right accorded to all arrested and imprisoned persons; and such an arbitrary denial, followed by a criminal trial and conviction, makes the conviction a deprivation of liberty without due process of law, a Fourteenth Amendment violation by the State of Georgia.
¶9The decision today by the majority, in my opinion, permits the state, through its police officers, through its attorneys who prosecute criminal cases, and through its trial judges, to arbitrarily deprive a person of his liberty, and the person so deprived, as was the respondent here, has no recourse against the state. I would afford recourse by holding that the conviction in this case is an unconstitutional deprivation of respondent’s liberty.
¶10I would affirm the judgment of the Court of Appeals.
¶11I respectfully dissent.