Norman v. Rehberg
| Decision Date | 20 May 1913 |
| Docket Number | 4,357. |
| Citation | 78 S.E. 256,12 Ga.App. 698 |
| Parties | NORMAN v. REHBERG. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the rulings of the Supreme Court in Daniel v Persons, 137 Ga. 826, 74 S.E. 260, and Neal v State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175, so much of the judgment in the instant case as purported to suspend the sentence during the good behavior of the defendant was void and of no force and effect, and consequently the trial judge did not err in refusing to release the plaintiff in error upon the petition for habeas corpus, or in directing that the former sentence of the court be executed.
Error from City Court of Moultrie; J. D. McKenzie, Judge.
Petition of Albert Norman for writ of habeas corpus against L. F Rehberg. From an order denying the writ, petitioner brings error. Affirmed.
W. A Covington, of Moultrie, for plaintiff in error.
Alfred R. Kline, Sol., of Moultrie, for defendant in error.
The plaintiff in error on August 14, 1911, entered a plea of guilty in the city court of Moultrie, Ga., to the offense of simple larceny. Upon this plea the judge of the city court entered the following judgment: After the imposition of this sentence, the defendant paid the fine of $50, and was set at liberty by the sheriff. On July 15, 1912, the judge of the city court of Moultrie passed an order stating the contents of the former sentence and setting out that there was a condition that, if said Albert Norman paid the fine of $50, the chain gang sentence was to be suspended during his good behavior, but that, whereas there was an affidavit filed in the city court of Moultrie charging the said Albert Norman with committing larceny again, the court ordered that the suspension of the sentence be declared void, and that the sheriff proceed to enforce the original judgment by placing the said Albert Norman in the chain gang as provided in the sentence.
The plaintiff in error filed a petition for a writ of habeas corpus, setting up the foregoing facts, and averring that no notice was ever given to the petitioner, or his attorneys, of the order commanding the rearrest of the plaintiff in error prior to the issuance of the order, nor any opportunity afforded him to defend himself against the charge that he had violated the condition upon which the suspension of the sentence was based. The petition further alleged that the original plea of guilty was made upon the understanding that the petitioner should not be deprived of his liberty as long as he kept the laws of Georgia, and that his detention was unlawful for the further reason that more than eight months, during which time the petitioner had been constantly going in and out before the officers of the court, had elapsed since the imposition of the original sentence. Upon the hearing of the application for habeas corpus, all of the facts stated in the petition were admitted by the respondent Rehberg to be true. After the hearing the application for release was refused, and the sheriff of Colquitt county was directed to enforce the sentence of the court in conformity with the order subsequent thereto.
Were it not for the rulings of the Supreme Court upon the questions involved, it might seem unfair and out of keeping with the spirit of our Constitution and laws (as insisted by counsel) to deprive this petitioner of his liberty, in view of the fact that it is admitted that the sentence was a conditional sentence, in which it was contracted that the prisoner should have his liberty, unless he violated the law, and that an adjudication that he had violated that contract was made without a hearing or any opportunity on his part to show that he had not in fact broken it. Under these rulings, the attempt to suspend the sentence was wholly void; and upon the petition for habeas corpus the judge was...
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