Jackson v. Waller

Decision Date07 October 1963
Docket NumberNo. 42698,42698
Citation248 Miss. 166,156 So.2d 594
PartiesDaniel JACKSON v. Bob WALLER, Sheriff of Forrest County.
CourtMississippi Supreme Court

William V. Murry, Hattiesburg, for appellant.

Joe. T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty., Gen., Jackson, for appellee.

RODGERS, Justice.

This action was brought in the Circuit Court of Forrest County, Mississippi, against the sheriff to obtain the release of petitioner, prisoner, by habeas corpus proceedings.

The petitioner alleges that he pleaded guilty to a charge of unlawful possession of intoxicating liquors on June 26, 1957, in the county court, and that he sas fined and sentenced to serve ninety days at labor on the county road; that upon payment of the fine, the ninety-day sentence was suspended by the county judge, pending the good behaviour of defendant, petitioner.

At the August 1962 term of the Forrest County Court, more than five years after his original sentence, petitioner again pleaded guilty to a charge of selling intoxicating liquors, and was sentenced to pay a fine and serve thirty days in jail. The fine was paid and the thirty-day sentence was served.

On the last day of the service of the sentence, the county attorney filed a petition in the county court, asking that the former sentence (June 26, 1957) be invoked so as to require the defendant to serve the ninety-day sentence previously suspended. The county judge entered an order, upon a hearing duly had upon notice given the defendant, revoking the suspended sentence, so as to require the defendant to serve the time originally suspended.

The defendant filed a petition for a writ of habeas corpus in the circuit court, and although several grounds were alleged in the petition, including the allegation that the petitioner was not represented by counsel, all of these allegations were brushed aside by admissions, or were not substantiated by the proof, so that finally the only issue presented to the circuit judge for determination was the question had authority under not the county judge had authority under the law to revoke the former suspended sentence after it had been suspended for a period of more than five years.

The circuit judge was of the opinion that the order of the ocunty court was property entered and refused to release the petitioner upon the writ of habeas corpus.

I

We are of the opinion that the learned circuit judge reached the wrong conclusion in this case for the following reasons hereinafter set forth:

This Court has heretofore pointed out that habeas corpus proceedings cannot be made to perform the function of a writ of error on appeal. See Kelly, Sheriff v. Douglas, 164 Miss. 153, 144 So. 237; Rogers v. Jones, 240 Miss. 610, 128 So.2d 547. On the other hand, in the latter case, we pointed out that 'The chief historical ground for the issuance of a habeas corpus writ and the release of a prisoner is the lack of jurisdiciton on the part of the court to sentence or to hold the prisoner', and 'The habeas corpus court could always inquire into the competency of the tribunal to determine whether or not it had jurisdiction to enter the judgment of conviction and whether or not the judgment authorized a detention of the prisoner.' (Emphasis supplied.) See Donnell v. State, 48 Miss. 661; Ex parte Chain, 210 Miss. 415, 49 So.2d 722.

In the case of Kittrell v. State, 201 Miss. 514, 29 So.2d 313, this Court held that 'An order revoking a suspension of sentence is not appealable', citing other cases, and expressly held 'When in such a matter there is a fundamental issue which if found in the convict's favor would make the proceedings null and void, the issue may be raised and reviewed in habeas corpus, * * *' Cf. Dickerson v. State, 150 Miss. 823, 117 So. 261.

In Mason v. Cochran, Sheriff, 209 Miss. 163, 46 So.2d 106, this Court released a prisoner in a habeas corpus proceeding where revocation of the suspended sentence was imposed in vacation by the circuit judge, without notice, and without giving the prisoner an opportunity to be heard. It is apparent, therefore, from the opinions above-cited that the circuit judge was authorized to determine in habas corpus proceedings whether or not the prisoner in the instant case was being unlawfully held by an order of the county court detaining the prisoner in custody or under probation for a period of time longer than was authorized by law. See 39 C.J.S. Habeas Corpus Sec. 26g, p. 501.

II

Did the county court exceed its authority by entering an order revoking a suspended sentence entered more than five years previously? The answer to this question requires a review of three statutes on the question of 'suspended sentence.'

The first of these statutes permitting the court to suspend sentence is Sec. 2541, Code 1942, Rec., and was originally enacted in 1914 (Chap. 207, Laws 1914, Sec. 1338, Hemingway's 1927 Code). It was amended in 1950 so as to include the county court, and it is now in the following language:

'The circuit courts and county courts, in misdemeanor cases, are hereby authorized to suspend a sentence, and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the judge of the court.'

The textwriter in 24 C.J.S. Criminal Law Sec. 1618(4), p. 878, points out that except where a statute permits a suspension in whole or in part, the authority of the court is confined to the suspension of the entire sentence, and that an order suspending a part of the sentence is void. In the instant case, however, we are not called on to pass upon this question except to point out that we are of the opinion that the sentence here imposed...

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5 cases
  • Scarborough v. Kellum
    • United States
    • U.S. District Court — Northern District of Mississippi
    • January 9, 1975
    ...court orders a shorter period of suspension, a suspended misdemeanor sentence will continue in effect for five years. Jackson v. Waller, 248 Miss. 166, 156 So.2d 594 (1963), opinion modified, 248 Miss. 166, 160 So.2d 184 It is therefore unnecessary for purposes of the present action to atte......
  • State v. Nicholson, 47534
    • United States
    • Mississippi Supreme Court
    • December 10, 1973
    ...210 So.2d 880 (Miss.1968); Allred v. State, 187 So.2d 28 (Miss.1966); Smith v. State, 155 So.2d 494 (Miss.1963); Jackson v. Waller, 248 Miss. 166, 156 So.2d 594 (1963); Donnell v. State, 48 Miss. 661 (1873). (229 So.2d at 581). Furthermore, we said in State v. Ridinger, 279 So.2d 618 (Miss.......
  • State v. Ridinger, 47415
    • United States
    • Mississippi Supreme Court
    • June 12, 1973
    ...A habeas corpus proceeding may not perform the function of an appeal unless the original judgment sentence was void. Jackson v. Waller, 278 Miss. 166, 156 So.2d 594 (1963); McLemore v. Love, 197 Miss. 273, 19 So.2d 828 (1944); Kelly v. Douglas, 164 Miss. 153, 144 So. 237 (1932); 25 Am.Jur. ......
  • Jackson v. Waller, 42698
    • United States
    • Mississippi Supreme Court
    • February 3, 1964
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