Hodges v. Balkcom

• Court: Georgia Supreme Court
• Writing for the Court: HAWKINS
• Citation: Hodges v. Balkcom, 209 Ga. 856, 76 S.E.2d 798 (Ga. 1953)
• Decision Date: 13 July 1953
• Docket Number: No. 18232,18232
• Parties: HODGES v. BALKCOM, Warden.

Page 798

76 S.E.2d 798

209 Ga. 856

HODGES v. BALKCOM, Warden.

No. 18232.

Supreme Court of Georgia.

July 13, 1953.

Wesley R. Asinof and Stonewall H. Dyer, Atlanta, D. L. Stanfield, Reidsville, for plaintiff in error.

J. T. Grice, Asst. Atty. Gen., John I. Kelley, Sol., and B. B. Zellars, Asst. Sol., Atlanta, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

The record in this case, a habeas corpus proceeding, brought by Margaret Hodges against the Warden of the State Prison, discloses that the plaintiff in error was convicted of a misdemeanor in the Criminal Court of Fulton County, November 17, 1950, and sentenced to twelve months upon the public works; that she gave notice of appeal by certiorari from the verdict and sentence imposed, and was admitted to bail pending the disposition of the certiorari, conditioned for her personal appearance to abide the final order, judgment, or sentence in said case; that her case was affirmed by the superior court on certiorari, and she proceeded to carry the case by successive appeals to the Court of Appeals of Georgia, Hodges v. State, 85 Ga.App. 617, 70 S.E.2d 48, to the Supreme Court of Georgia, 209 Ga. 283, 71 S.E.2d 543, and to the Supreme Court of the United States, 344 U.S. 903, 73 S.Ct. 283. Her conviction was upheld by the appellate courts, and in due course the remittitur from the Court of Appeals of Georgia was transmitted to and made the judgment of the Superior Court of Fulton County on February 7, 1953. During all of these proceedings the plaintiff in error was free under the bond above referred to. After the remittitur from the Court of Appeals was made the judgment of the superior court, the bond was not forfeited, but the surety on the certiorari bond was notified to surrender his principal. The surety failed and refused to do so, and the plaintiff in error failed and refused to surrender herself, and was thereafter arrested upon a bench warrant and turned over to the prison authorities to serve the sentence previously imposed. After the final judgment in the certiorari proceeding, but before her arrest, her counsel presented to the judge of the Criminal Court of Fulton County, on February 10, 1953, a motion to vacate and set aside the judgment and sentence in the misdemeanor case upon which a rule nisi was issued. She was arrested on February 24, 1953, and the motion to vacate and set aside the sentence was dismissed on demurrer on March 5, 1953. She then notified the court of her intention to apply for a writ of certiorari from said ruling, and did thereafter on March 16, 1953, present and have sanctioned a petition for writ of certiorari to review the judgment of dismissal. She contends in her habeas corpus petition that her restraint by the prison authorities is illegal for the reason that the original certiorari bond is still of force, and she is entitled to be released thereunder; and further, that if that bond should be functus officio, then the sanction of the petition for certiorari, complaining of the dismissal of her motion to vacate and set aside the judgment, operates to suspend the execution of the sentence until that writ of certiorari is finally determined, and entitles her to another supersedeas bond pending the disposition of that certiorari. Upon the hearing of the habeas corpus petition, the trial judge refused to release the plaintiff in error and remanded her to the custody of the prison authorities. To this judgment she excepts. Held:

1. Where, as here, one convicted of a misdemeanor in the Criminal Court of Fulton County has appealed by certiorari and successive writs of error to the Superior Court of Fulton County, the Court of Appeals of Georgia, the Supreme Court of Georgia, and the Supreme Court of the United States, and the verdict and sentence have been affirmed, and the remittitur from the Court of Appeals of Georgia affirming such verdict and sentence has been made the judgment of the superior court, such verdict and sentence become final; and where the defendant is thereafter arrested, the supersedeas certiorari bond executed in that case is abrogated and becomes functus officio, and the defendant is not thereafter entitled to remain at liberty by virtue of the such bond. Smith v. Kitchens, 51 Ga. 158; Colquitt v. Smith, 65 Ga. 341; Roberts v. State, 32 Ga.App. 339, 123 S.E. 151.

2. While Code, § 27-901 provides that 'At no time, either before the commitment court, when...