Parks v. State

• Decision Date: 13 March 1950
• Docket Number: No. 16997,16997
• Citation: 58 S.E.2d 142,206 Ga. 675
• Parties: PARKS v. STATE.
• Court: Georgia Supreme Court

Page 142

58 S.E.2d 142

206 Ga. 675

PARKS v. STATE.

No. 16997.

Supreme Court of Georgia.

March 13, 1950.

Rehearing Denied March 27, 1950.

Syllabus by the Court.

Where a defendant is convicted on circumstantial evidence, the trial judge has no discretion to change a death sentence to life imprisonment, after adjournment of the term at which the original sentence was imposed, and after the judgment refusing the motion for new trial has been affirmed.

Freddie Parks, alias Fred Alexander, was indicted, at the January term, 1946, of Floyd Superior Court, for the offense of murder. His case came on for trial in April, 1946, and the jury returned a verdict of guilty without a recommendation of mercy. Upon a review of the case in this court the evidence, which was entirely circumstantial, was held to be insufficient to support the verdict, three Justices dissenting. Parks v. State, 202 Ga. 84, 42 S.E.2d 103. On April 29, 1947, another jury in Floyd Superior Court, on a second trial of the case, returned a verdict of guilty without a recommendation. On review in this court, the conviction was affirmed, one Justice dissenting. Parks v. State, 203 Ga. 302, 46 S.E.2d 504. Thereafter the defendant filed an extraordinary motion for new trial, based on newly discovered evidence, which motion was overruled by the trial judge, and the judgment was later affirmed by this court. Parks v. State, 204 Ga. 41, 48 S.E.2d 837. The defendant filed an application for commutation of sentence, with the State Board of Pardons and Paroles, which application was heard on September 23, 1948. On April 15, 1949, the board rendered a decision, denying commutation of sentence, by a vote of 2 to 1, the chairman voting for commutation.

On November 28, 1949, the defendant filed a petition with the Judge of the Superior Court of Floyd County, denominated as his 'application and motion for commutation of sentence.' He recited the facts concerning the judicial proceedings above enumerated and the action of the State Board of Pardons and Paroles. In this motion the following contentions were made: To permit the execution of the defendant by electrocution under the verdict of the jury, would deny the defendant due process, guaranteed under the State and Federal Constitutions, because the act of 1943, pages 185, 187, creating the State Board of Pardons and Paroles, provides that, 'in all cases of clemency, pardons and paroles, a majority vote of the members is sufficient for approval, except in cases involving capital punishment, and in such cases a unanimous vote of all members of the Board is necessary'; and the vote denying him clemency was not unanimous. The action of the State Board of Pardons and Paroles was not within the time required under section 11 of the Act of 1943, creating the board, and was therefore illegal and contrary to law, and deprived the defendant of due process of law. The evidence on both trials of his case was wholly circumstantial, and no jury had an opportunity to review, analyze, or evaluate the evidence submitted in his extraordinary motion for new trial. The case is still in the breast of the trial court, and the court should exercise its discertion as provided in the Code, § 26-1005, where a conviction is obtained wholly upon circumstantial evidence, and commute the defendant's sentence from death to life imprisonment. The prayers of the motion were: 'Wherefore, the defendant prays that all the facts and circumstances surrounding his arrest, trial and conviction be reviewed and considered by the court and that the trial judge be instructed by the Supreme Court to exercise the authority and discretion vested in him by law, and that said sentence be commuted to life imprisonment.'

On presentation of the application to Honorable H. E. Nichols, Judge of Floyd Superior Court, Judge Nichols denied the application, with the pronouncement that in his opinion he was at that time without jurisdiction to commute the sentence from death to life imprisonment. Error is assigned on this ruling of the trial court.

M. G. Hicks, Rome, C. T. Culbert, Jr., Rome, for plaintiff in error.

John W. Davis, Sol. Gen. Pro Tem., Summerville, Eugene Cook, Atty. Gen., Frank B. Stow, Asst. Atty. Gen., Robert E. Andrews, Atlanta, for defendant in error.

HEAD, Justice.

'A person convicted of a capital offense is never sentenced, under the law of this state, but one time. The sentence is the conclusion of the record, and, once entered, the record is complete. It may be that the time fixed in the sentence expires, but the sentence stands in full force. * * * What is commonly referred to as a 'resentence' is only the fixing of a new time for the execution of a sentence.' Baughn v. State, 100 Ga. 554, 558, 28 S.E. 68, 70, 38 L.R.A. 577; Mallory v. Chapman, 158 Ga. 228, 231, 122 S.E. 884, 34 A.L.R. 310; Gore v. Humphries, 163 Ga. 106, 111, 135 S.E. 481; Benton v. State, 187 Ga. 149, 155, 199 S.E. 749; Smith v. Henderson, 190 Ga. 886, 10 S.E.2d 921; Fowler v. Grimes, 198 Ga. 84, 94, 31 S.E.2d 174; Solesbee v. Balkcom, 205 Ga. 122, 125, 52 S.E.2d 433, affirmed by the Supreme Court of the United States on February 20, 1950, Solesbee v. Balkcom, 70 S.Ct. 457; Code, §§ 27-2518, 27-2521.

In Fowler v. Grimes, supra, it was stated: 'Moreover, even if the case had been such that he [the trial judge] would have had a discretion originally, he could not have changed the sentence from one of death to one of life imprisonment, after adjournment of the term at which the original sentence was imposed, and after the judgment refusing the defendant's motion for a new trial had been affirmed.' [198 Ga. 84, 31 S.E.2d 180]

In the present case, the defendant had been convicted of murder without a recommendation of mercy by the jury, and although the evidence in the case...