Dixon v. Beaty
| Decision Date | 15 September 1939 |
| Docket Number | 12926. |
| Citation | 4 S.E.2d 633,188 Ga. 689 |
| Parties | DIXON v. BEATY, Warden. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
On the facts shown at the hearing of an application for habeas corpus, the applicant was not entitled to discharge from custody on the ground that his detention was illegal because the sentence of court imposed on him had been satisfied.
George W. Westmoreland, of Jefferson, for plaintiff in error.
Frank Simpson, solicitor-general, of Norcross, and C. E. Gregory Jr., of Decatur, for defendant in error.
On April 12, 1939, an application for the writ of habeas corpus was filed by Arthur Dixon against John Beaty, as warden of Jackson County, to obtain applicant's release from the chain-gang. After considering the application, together with the response and the evidence, the judge of the superior court remanded the applicant to custody, and he excepted. The following facts appeared, without dispute, from the pleadings and the evidence: Dixon was convicted of an offense in the superior court of Jackson County, and was sentenced to serve for six months in the chain-gang. His conviction was affirmed by the Court of Appeals on October 10, 1938. Dixon v State, 58 Ga.App. 479, 199 S.E. 156. The superior court of Jackson County was in session at this time, and during this session Dixon's attorney advised him 'that there was nothing else to do but get ready to make his time,'--at or about the same time calling the court's attention to the fact that the remittitur had not been returned; whereupon the judge stated that it would not be necessary to have judgment on the remittitur, but for Dixon to surrender himself to the sheriff and 'go to making his time.' Accordingly, on October 17, 1938, the applicant presented himself to the sheriff, and offered to commence the service of his sentence immediately. The sheriff stated that 'he had no orders to take him, and as soon as he got orders * * * would let him know.' The applicant received 'word' from the sheriff on March 3, 1939, and entered the chaingang on March 6. The remittitur from the Court of Appeals was not filed in the office of the trial court until after October 21, 1938, the exact date not being shown. It was made the judgment of the trial court on January 17, 1939. The record does not show whether the sentence itself contained anything to indicate the time when it should commence.
It is contended that the duration of the servitude should be computed from October 17, 1938, when the applicant offered to begin his service, and that the sentence of six months had thus expired before the filing of the application. Counsel for the applicant also presents the query as to whether, if the sentence did not begin on that date, then from what time it should be computed, whether from January 17, 1939, the date the remittitur was made the judgment of the trial court, or from March 6, 1939, the date the applicant actually entered the chain-gang? The case is not one involving a probation sentence; nor are we concerned with the act of August 27, 1931 (G.L.1931, p. 165; Code, § 27-2505), relating to computation of sentence, the applicant as the defendant therein not having been incarcerated. Murphey v. Lowry, 178 Ga. 138, 172 S.E. 457; Crosby v. Courson, 181 Ga. 475(9), 182 S.E. 590. The record being silent on the subject, the petition must be construed most strongly against the pleader, and on such construction it is presumed that the sentence did not provide for its commencement before entry of the applicant into the chain-gang. Neal v. State, 104 Ga. 509(2), 517, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175; Fortson v. Elbert County, 117 Ga. 149, 151, 43 S.E. 492.
The decisions in Etheridge v. Poston, 176 Ga. 388(2), 168 S.E. 25, and Crosby v. Courson, 181 Ga. 475(5), 182 S.E. 590, so far as they refer to an offer to begin service, contemplate an offer consistent with valid terms of sentence and with law.
In Wiggins v. Tyson, 114 Ga. 64(3), 39 S.E. 865, it was held: 'If the judgment of the lower court in a criminal case is affirmed by this court, and the accused commences to serve his sentence before the remittitur from this court is received and filed by the clerk of the lower court, his term of service should be computed from the time the remittitur is filed in the lower court.' The quoted ruling was concurred in by all the Justices, and is controlling,...
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