Brown v. City Of Atlanta

• Decision Date: 17 July 1905
• Citation: 123 Ga. 497,51 S.E. 507
• Parties: BROWN. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

123 Ga. 497

51 S.E. 507

BROWN.

v.CITY OF ATLANTA.

Supreme Court of Georgia.

July 17, 1905.

1. Criminal Law — Sentence in Alternative.

A sentence imposing two penalties in the alternative, one of which is unauthorized, is not void, but may be enforced as to the penalty which is authorized. Taff v. State, 39 Conn. 82; Lowrey v. Hogue, 24 Pac. 995, 85 Cal. 601; People v. Harrington, 42 N. W. 680, 75 Mich. 112; In re Sweatman, 1 Cow. 144, 149.

2. Same—Review.

A person upon whom such an alternative sentence has been imposed, and who voluntarily complies with that portion of the sentence which is legal, cannot thereafter have the judgment of conviction reviewed.

3. Certiorari—Dismissal.

A certiorari sued by such a person should be dismissed, and a judgment overruling the certiorari and dismissing the petition will not be disturbed.

4. Same—Answer.

Even if the recorder could not properly state in his answer to the certiorari that the fine had been paid, a statement therein to this effect could be acted on by the superior court in the absence of a traverse of the answer or a denial of the fact therein stated.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

G. B. Brown was convicted of the violation of a city ordinance, and brings error. Affirmed.

Brown was convicted in the municipal court of the city of Atlanta for a violation of an ordinance against the keeping of intoxicating liquors for unlawful sale. The ordinance in question provided that upon conviction the offender should be punished "by a fine not exceeding five hundred dollars, or imprisonment not exceeding thirty days, either or both, in the discretion of the court." The recorder imposed upon the accused a sentence that he pay a fine of $100 and costs, and that in default of such payment said defendant work on the streets or public works of said city thirty days under the direction of superintendent of public works." The accused sued out a petition for certiorari, in which he alleged, among other things, that the imposition of the alternative sentence to labor upon the public works was without authority of law. The writ of certiorari was issued, and the recorder answered that the imposition of the alternative penalty complained of was due to inadvertence, that the accused paid the line imposed in the sentence before be ing put to labor on the public works, and that the respondent had no notice of the error in the sentence until the certiorari was served upon him. The judge of the superior court overruled the certiorari, and the accused excepted.

John F. Methvin and Spencer R. Atkinson, for plaintiff in error.

J. L. Mayson and W. P. Hill, for defendant in error.

COBB, J. It is contended by counsel for the city that under the charter of Atlanta the sentence of the recorder was legal in its entirety. But this question is immaterial. The recorder undoubtedly had authority to impose a fine. The sentence has been complied with, the penalty which it was lawful to impose has been paid, and the judgment is satisfied. The city is not seeking to enforce any other part of the sentence; neither can it do so, whether the alternative penalty which was not submitted to be legal or...