Syllabus
by the Court.
There
is no law of force in this state which confers upon a judge
any power or authority to suspend the execution of a sentence
imposed in a criminal case, except as an incident to a review
of the judgment; and where a sentence, to which no exception
is taken, directed that the person convicted pay the costs of
prosecution, and in addition thereto that he be confined in
the chain gang on the public works of the county, or
elsewhere as the proper authorities may direct, for the full
term of 12 months, to be computed from the date of his
delivery to the chain gang, "provided, however, that
this sentence to be confined upon the chain gang be and the
same is hereby suspended indefinitely during the good
behavior of the defendant, the court reserving the right to
have said sentence executed whenever in the discretion of the
court it ought to be," held, that the portion
of the sentence last quoted, purporting to suspend so much of
the same as directed that the defendant be confined in the
chain gang, is of no force, and consequently should be
ignored, and the sentence executed as if it did not appear
therein, and that one upon whom such a sentence has been
imposed cannot, though more than 12 months may have elapsed
from the date of the sentence, be held to have served out the
term therein mentioned, when in point of fact he has never
been placed in the chain gang, especially so when the
sentence itself declares that the imprisonment in the chain
gang "be computed from the date of his delivery to such
chain gang."
Certified
Question from Court of Appeals.
Habeas
corpus proceedings by Ike Daniel against W. F. Persons. From
a judgment refusing the writ, defendant brings error. Heard
on questions certified by the Court of Appeals. Answered.
FISH
C.J.
The
Court of Appeals has certified to this court the following
question:
"In
the above-stated case the Court of Appeals desires the
instruction of the Supreme Court on the following question
of law, a decision of which is necessary to the proper
adjudication of said case:
"On
November 13, 1907, Ike Daniel entered a plea of guilty
in the city court of Monticello, to the offense of
carrying concealed weapons, and thereupon the court
imposed the following sentence: 'It is ordered and
adjudged by the court that the defendant do pay into this
court the sum of no dollars and the costs of this
prosecution, and in addition thereto that he be confined
in the chain gang on the public works of said county, or
elsewhere the proper authorities may direct, for the full
term of twelve months, to be computed from the date of
his delivery to said chain gang. And it is further
ordered that the defendant be taken from the bar of this
court to the common jail of said county, there to be kept
in close custody until he shall be demanded by the
authorities of said chain gang, in default of the payment
of said fine and costs: Provided, however, that this
sentence to be confined upon the chain gang be and the
same is hereby suspended indefinitely during the good
behavior of the defendant; the court reserving the right
to have said sentence executed whenever in the discretion
of the court it ought to be.' The accused paid the
costs of the prosecution as required, and was discharged.
On May 13, 1911, the judge of the city court of
Monticello, who had imposed the foregoing sentence,
passed the following order: 'It appearing that this
defendant has not served the sentence on the chain gang
passed by this court November 13, 1907, and that his
behavior has not been good, it is therefore considered,
ordered, and adjudged by the court that the sheriff
proceed to execute said sentence, and that said Ike
Daniel be confined in the chain gang on the public works
of said county, or elsewhere the proper authorities may
direct, for the full term of twelve months, to be
computed from the date of his delivery to said chain
gang.' In compliance with the last above order Ike
Daniel was arrested by the sheriff. He sued for a writ of
habeas corpus, and, after hearing, his application was
refused, and he was remanded to the custody of the
sheriff.
"Under
the facts stated, was the custody of the sheriff legal,
or should the accused have been discharged on habeas
corpus? In this connection the Court of Appeals calls to
the attention of the Supreme Court the decisions in the
cases of Neal v. State, 104 Ga. 509, 30 S.E.
858, 42 L.R.A. 190, 69 Am.St.Rep. 175, Gordon v.
Johnson, 126 Ga. 584, 55 S.E. 489, and
O'Dwyer v. Kelly, 133 Ga. 824, 67 S.E. 106,
where there is apparent conflict in the decisions on the
question raised in the present record and on which
instructions are requested."
In
Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190
69 Am.St.Rep. 175, it was held: "(1) There is no law of
force in this state which confers upon a judge any power or
authority to suspend the execution of a sentence imposed in a
criminal case, except as an incident to a review of the
judgment; and therefore a sentence to which no exception is
taken, directing, among other things, that the accused do
work in a chain gang for a term of six months, cannot
lawfully be qualified by adding thereto the words:
'Sentence of six months suspended until further order of
the court.' Such words in such a sentence are of no
force, and consequently
should be ignored, and the sentence executed just as if they
did not appear therein. (2) One upon whom such a sentence has
been imposed cannot, though more than six months may have...
