Murphy v. Lowry
| Decision Date | 29 December 1933 |
| Docket Number | 9719. |
| Citation | 172 S.E. 457,178 Ga. 138 |
| Parties | MURPHY v. LOWRY, Sheriff. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Statute requiring computation of term of service from date of sentence does not preclude courts from requiring sentences concurrently imposed to be served consecutively (Laws 1931 p. 165, § 1; Pen. Code 1910, §§ 4, par. 9, 1067, 1081).
The Act of August 27, 1931 (Ga. L. 1931, p. 165, § 1), providing that "it shall be the duty of the several judges of this State, in the imposition of sentence for violation of the penal laws of the State, to specify that the term of service under such sentence, shall be computed as from the date of sentence," under stated circumstances, did not repeal existing laws as to the power of the courts to require sentences to be served consecutively. Under the facts of this case, the court did not err in refusing to discharge the petitioner on application for the writ of habeas corpus.
Error from City Court of Atlanta; Hugh M. Dorsey, Judge.
Petition for a writ of habeas corpus by Mrs. Mattie Murphy against J I. Lowry, sheriff of Fulton county. Writ was refused, and petitioner brings error.
Affirmed.
Geo. G. Finch, of Atlanta, for plaintiff in error.
John A. Boykin, Sol. Gen., J. Walter Le Craw, John S. McClelland, Sol., and I. Leonard Crawford, all of Atlanta, for defendant in error.
Mrs. Mattie Murphy filed a petition against J. I. Lowry, sheriff of Fulton county, for the writ of habeas corpus. She alleged that on November 8, 1932, on accusation No. 116781, a copy of which was attached to the petition as Exhibit A, she was sentenced in the criminal court of Atlanta to serve a period of three months, "to be computed in accordance with the act approved August 27, 1931," and that she was also at the same time and in the same court sentenced for a term of three months each on four other accusations numbered 116782 to 116785, respectively. The petition alleged that she began executing the sentences in accordance with the Act of 1931 and that her term of service expired on February 8, 1933, which was three months after the date of the first sentence. The petition also averred that her restraint and detention is and has been illegal from and after that date. Copies of all of the five accusations with sentences entered thereon were attached to the petition as exhibits, and each of the sentences except the first stated in effect that the term of service thereunder was to follow the term imposed in the next previous sentence. It appears from the record that the defendant pleaded guilty in each case, and that she was incarcerated at the time these sentences were imposed. She therefore contends that each sentence should be computed from that date, and that the sentences ran concurrently and not consecutively. The respondent denied the illegality of the plaintiff's detention. The case was tried before the judge on the pleadings, there being no issue of fact; and he passed an order refusing the writ. To this judgment the petitioner excepted.
The Act approved August 27, 1931 (Ga. L. 1931, p. 165, § 1), provides that "it shall be the duty of the several judges of this State, in the imposition of sentence for violation of the penal laws of the State, to specify that the term of service, under such sentence, shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appealed to the State Court of Appeals, or the Supreme Court for reversal of the conviction, in which event the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond, but is incarcerated or in custody of the sheriff of the county where convicted."
Section 1067 of the Penal Code provides as follows: "Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence and the length of its duration." This section refers to felony cases only, but in misdemeanor cases the court may also provide that the terms shall be served consecutively. Fortson v. Elbert County, 117 Ga. 149, 43 S.E. 492; Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (8), 43 S.E. 780, 61 L.R.A. 739; Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520; Sullivan v. Clark, 156 Ga. 706, 119 S.E. 913. In the Penal Code (1910) § 1081, it is provided that a person convicted of a felony "shall, as soon as possible after conviction, together with a copy of the record of his conviction and sentence, be safely conveyed to the penitentiary by a guard to be sent therefrom for that purpose, and therein be safely kept during the term specified in the sentence of the court." (Italics ours.) See, also, in this connection, Neal v. State, 104 Ga. 509 (2), 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175; Daniel v. Persons, 137 Ga. 826, 74 S.E. 260; Avery v. State, 22 Ga.App. 746 (3), 97 S.E. 204.
Was the Act of 1931 intended to repeal or supersede the law conferring upon the courts the power to cause sentences to be served consecutively? It is the opinion of this court that the Legislature did not so intend. The cardinal rule for the construction of statutes is to determine the intention of the Legislature, and for this purpose to keep in view at all times "the old law, the evil, and the remedy." Civil Code (1910) § 4, par. 9. Having stated the old law, we should next consider the evil sought to be remedied by the new law. It is a matter of judicial knowledge that in some cases prisoners after conviction may for...
To continue reading
Request your trial