Avery v. State

• Decision Date: 22 October 1918
• Docket Number: 10101.
• Parties: AVERY v. STATE.
• Court: Georgia Court of Appeals

97 S.E. 204

22 Ga.App. 746

AVERY v. STATE.

No. 10101.

Court of Appeals of Georgia, Second Division

October 22, 1918

Syllabus by the Court.

A judge in this state has no authority to suspend the execution of a sentence imposed by him in a criminal case, except as an incident to a review of the judgment. Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175; O'Dwyer v. Kelly, 133 Ga. 824, 67 S.E. 106; Daniel v. Persons, 137 Ga. 826, 74 S.E. 260; Short v. Dowling, 138 Ga. 834, 76 S.E. 359; Hancock v. Rogers, 140 Ga. 688, 79 S.E. 558; Cook v. Jenkins, 146 Ga. 704, 92 S.E. 212; Norman v. Rehberg, 12 Ga.App. 698, 78 S.E. 256.

It is clear, from the agreed statement of facts set out in the bill of exceptions, that the sentence imposed was a straight chain gang sentence, and that its execution was suspended, and that the defendant was not placed on probation; consequently the provisions of the Probation Act of 1913 (Ga. Laws 1913, p 112) have no application to this case.

The judge having no authority to suspend the sentence imposed upon the defendant, and the defendant having subsequently been arrested and put in the chain gang to serve out the sentence, the judge did not err in refusing the defendant's motion "to cancel and enter satisfied the judgment and sentence." See authorities cited above. This is true, although the sentence imposed was 12 months in the chain gang, and the subsequent arrest of the defendant was after the expiration of 12 months from the date of such imposition. Neal v. State, supra; Norman v. Rehberg, supra; Daniel v. Persons, supra.

Error from City Court of Oglethorpe; R. L. Greer, Judge.

A. C Avery was convicted of keeping prohibited quantities of whisky, and from an order committing him to the chain gang he brings habeas corpus, and from a judgment remanding him to the custody of the chain gang warden he brings error. Affirmed.

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Exhibit A: 'The State v. Quill Avery. No. 1421 Accusation for Keeping More than Two Quarts of Whisky on Hand. In City Court of Oglethorpe. Plea of guilty. April term, 1917. Whereupon it is ordered, considered, and adjudged by the court that the defendant, Quill Avery, be confined to labor in the chain gang on the public works for and during the term of twelve months. Judgment signed this 19th day of April, 1917. R. L. Greer, J. C. C. O.' "

H. B. Moss, of Marietta, for plaintiff in error.

Jule Felton, Sol., of Montezuma, for the State....