Johnson v. Walls

• Decision Date: 15 September 1937
• Docket Number: 11885.
• Parties: JOHNSON v. WALLS.
• Court: Georgia Supreme Court

194 S.E. 380

185 Ga. 177

JOHNSON v. WALLS.

No. 11885.

Supreme Court of Georgia

September 15, 1937

Rehearing Denied Dec. 8, 1937.

Error from Superior Court, Putnam County; W. A. McClellan, Judge.

Habeas corpus proceeding by James Johnson against Tom Walls, Warden. To review a judgment remanding the prisoner to custody, the prisoner brings error.

Affirmed.

On Motion for Rehearing.

C. B McCullar, of Milledgeville, and D. D. Veal and S. T Wingfield, Jr., both of Eatonton, for plaintiff in error.

R. C Whitman, of Eatonton, for defendant in error.

Syllabus OPINION.

JENKINS Justice.

1. There are two systems of parole or probation of force in the state: First, that under which the trial judge may in the sentence provide for the parole of offenders convicted of or punished as for misdemeanors; and second, that under which the prison commission with the approval of the Governor may order probation to all offenders who might be convicted of any offense save those excepted by the statute, after 'the minimum sentence fixed by law' has been served, so that the prisoner 'may be allowed to go upon parole outside the confines of [the] penitentiary, but to remain within the legal custody and under the control of said Prison Commission, and subject at any time to be taken into custody on order of said Commission' for a 'violation of the conditions of his parole, or otherwise.' As to the first system, see Code, §§ 27-2702 to 27-2705, inclusive (Ga.L.1913, pp. 112, 114). As to the second, see Code, §§ 77-502 to 77-506, inclusive (Ga.L.1908, pp. 1115-1117; Ga.L.1919, p. 106). Under the first system, the statute expressly provides for a 'due examination' by the judge before altering the terms of the original sentence, exempting the person convicted from imprisonment; and there must be notice to him and an opportunity to be heard before imprisonment can be imposed. Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746; Smith v. Veach, 165 Ga. 190, 140 S.E. 356; Plunkett v. Miller, 161 Ga. 466, 131 S.E. 170; State v. Thompson, 175 Ga. 189, 165 S.E. 34. Under the latter system, where by the terms of the original sentence the person convictd has been sentenced to prison, the effect of a revocation of the parole, authorized under the statute 'for violation of [its] conditions, * * * or otherwise,' does not exceed or transcend the effect of the original sentence. Nor does it have the effect of making a prisoner of the person not then serving as such, since under the terms of the statute all paroled defendants remain prisoners under the control of the prison commission, although allowed to go outside of the confines of the penitentiary. Since this statute, thus operating, does not contain any provision for any prior notice or hearing before the revocation of a parole, such a requirement should not be read into the law. Accordingly, the commission may revoke paroles without such a notice or hearing; but, as in the case of other quasi-judicial or administrative bodies, there would be a restriction on its powers that it could not act fraudulently, corruptly, or on mere personal caprice. See 46 C.J. 1208-1210, 1220; 29 C.J. 39; Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L.R.A. 502, 82 Am.St.Rep. 17; Woodward v. Murdock, 124 Ind. 439, 24 N.E. 1047; In re Kennedy, 135 Mass. 48; State v. Hunter, 124 Iowa 569, 100 N.W. 510, 104 Am.St.Rep. 361.

2. A defendant whose parole has been revoked by the prison commission cannot by a petition for habeas corpus attack such revocation except upon the grounds above stated. So strong is the presumption in favor of the proper discharge by such public officers of their official duties (Connolly v. Atlantic Contracting Co., 120 Ga. 213(2), 216, 47 S.E. 575; Doe ex dem Truluck v. Peeples, 1 Ga. 3; Georgia Power Co. v. Fincher, 46 Ga.App. 524, 168 S.E. 109; Petition of Kozlowsky, 238 Mass. 532, 132 N.E. 188), that the petitioner must show by plain and clear proof the existence of one or more of such legal grounds of attack.

3. The released defendant, after the grant of a parole, still remaining, under the statute, a prisoner 'within the legal custody and under the control' of the prison commission, and having the opportunity by habeas corpus to test a...