Paulk v. Sexton

• Court: Georgia Supreme Court
• Writing for the Court: BELL, Justice.
• Citation: Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (Ga. 1947)
• Decision Date: 14 November 1947
• Docket Number: 15935.
• Parties: PAULK, Sheriff, v. SEXTON.

45 S.E.2d 768

203 Ga. 82

PAULK, Sheriff, v. SEXTON.

No. 15935.

Supreme Court of Georgia

November 14, 1947

Fact that applicant for habeas corpus had been arrested under a previous warrant and discharged therefrom on habeas corpus did not establish in subsequent habeas corpus proceeding that detention of applicant after subsequent arrest was unlawful where offense for which previous warrant was issued was different from that for which he was subsequently arrested. Ga.Code Ann. § 50-116(1, 6).

The exception is to an order releasing and discharging the applicant in a habeas corpus proceeding. Three criminal warrants were referred to in the evidence, all having been sworn out by H. T. Troup, Jr., against W. R Sexton, and issued by G. G. Meeks, a justice of the peace of Irwin County, Georgia: (1) Warrant dated March 13, 1947, for cheating and swindling, based on a check for $1350; (2) warrant dated May 15, 1947, for the 'offense of cheating and swindling, uttering a worthless check on Citizens Bank of Americus, Georgia, on the 3rd day of August, 1946;' (3) warrant dated May 15, 1947, for the 'offense of a felony as described in the Code, section 5-9914 on or about 13th day of November, 1946.' Only the two lastmentioned warrants are directly involved in the instant case, the applicant having been previously released from arrest under the warrant first mentioned.

The Code section referred to in the felony warrant provides 'Any person engaged, either on his own account or for others, in the business of buying cotton, corn, rice, crude turpentine, spirits of turpentine, rosin, pitch, tar, cattle hogs, sheep, goats, horses, pecans, peaches, apples watermelons, cantaloupes, and mules, or other products or chattels sold by planters and commission merchants on a cash sale, who shall buy such articles on sale from a planter or commission merchant for cash, and shall fail or refuse to pay for, and shall make way with or dispose of the same before he shall have paid therefor, shall be imprisoned in the penitentiary for not less than one year, nor more than five years.' Code, § 5-9914, as amended by Ga.L.1941, p. 337.

The present case comes to this court solely by a certified bill of exceptions, in which the following facts appear: On May 20, 1947, W. R. Sexton, through his attorney, presented to Honorable R. Eve, Judge of the Superior Court of Irwin County, a petition for the writ of habeas corpus, naming as respondent Tillman Paulk, sheriff of Irwin County. The petition alleged: 3. The cause or pretense of restraint is under a certain warrant of arrest issued in Irwin County by a justice of the peace. 4. Said restraint of W. R. Sexton 'is illegal, in that the offense on which the warrant was issued is bailable under the constitution of this State defining bailable offenses, and said W. R. Sexton has been twice arrested on the same charge as that named in the warrant, and has been once removed to Irwin County where restitution was made on the charge and the warrant was withdrawn; that on May 10, 1947, the said W. R. Sexton was discharged on a writ of habeas corpus by the Court of Ordinary of Harris County, Georgia; and the said W. R. Sexton was arrested by agents of the Georgia Bureau of Investigation on May 19, 1947, and removed to Atlanta, Georgia, and lodged in Fulton Tower without an opportunity to give bail on the said offense although bail was offered to the said agents of the Georgia Bureau of Investigation.'

The judge passed an order requiring the defendant sheriff to produce the body of the applicant, together with the cause of his detention, on May 21, 1947.

The respondent filed an answer, admitting detention of the applicant, but denying the alleged illegality, the response being in part as follows:

'6. This respondent shows that he is holding said defendant under a warrant issued by the Honorable G. G. Meeks, Justice of the Peace of the 1529th District G. M., of Irwin County, Georgia, in which the said W. R. Sexton * * * is charged with the offense of a felony; and that he is also holding said W. R. Sexton under a warrant issued by' the same justice of the peace, 'which charges the said W. R. Sexton with the offense of a misdemeanor.

'7. That said petitioner has not offered to make bail to this respondent, and said petitioner has not been denied the right to make bail, but on the other hand defendant has been at all times ready and willing to take said petitioner before a committal magistrate so that bond can be assessed, but immediately after the incarceration in the common jail of said petitioner by respondent * * * this petition for habeas corpus was sued out, and therefore this respondent has had no opportunity to have bail assessed.'

The hearing was held on May 24, 1947. It is recited in the bill of exceptions: 'On said trial a stipulation was entered into between the parties that a return has been duly filed by the respondent * * * showing that Mr. Sexton was in court in response to a writ of habeas corpus directed to Tillman Paulk, sheriff of Irwin County, Georgia, and that such return shows that said sheriff is holding Mr. W. R. Sexton on a warrant sworn out on May 15, 1947, before G. G. Meeks, justice of the peace, by H. T. Troup, Jr., accusing W. R. Sexton of a felony. F. W. New, plaintiff's counsel, stated in his place that this man was arrested on May 19, 1947, in Harris County by the Georgia Bureau of Investigation and carried to Fulton Tower, where he was held until May 20, 1947, and that attempt was made to tender bail to the arresting officers, such bail being declined.'

On the hearing, the applicant introduced as witnesses in his own behalf H. T. Troup, Jr., the prosecutor, Tillman Paulk, sheriff of Irwin County, and H. V. Grantham, deputy sheriff. The applicant also testified, and introduced certain documentary evidence. It appeared from the evidence that respondent was holding the applicant under two warrants dated May 15, 1947, one for a misdemeanor and the other for a felony, as already described. The evidence also shows that Sexton resided in Harris County, but operated an abattoir in Americus. The warrant from which he was previously released on habeas corpus in Harris County was issued on March 13, 1947, being the warrant first mentioned in this statement.

It is deemed sufficient to set forth in detail only a portion of the testimony, as follows: H. T. Troup, Jr., who swore out the warrants, testified that he had known Sexton (the applicant) about three years and had done $75,000 to $100,000 business with him; that in July, 1946, he sold to Sexton livestock to the value of more than $7,000; that he drew a draft on him for the amount, and upon finding that the draft was 'coming back' went to see Sexton and took from him post-dated checks for the amount of the draft. Among these checks was one dated July 25, 1946, for $2071.40, and one dated August 1, 1946, for $2907.91. Payment of each was refused on account of insufficient funds, although the check dated July 25 was thereafter paid in full. In November, 1946, Troup again sold livestock to Sexton, drawing a draft on him for $825.63, which draft was several times returned unpaid, and on December 14 he drew another one for the same amount in lieu of the previous one. In February, 1947, Troup sold to Sexton other livestock to the amount of about $1300. Troup further testified: 'I did on March 13th [1947] have Mr. Sexton arrested at Columbus, Ga., on a warrant based on a check for $1350. At that time he was removed to Ocilla and placed in jail.' At this time, according to Troup's testimony, Sexton owed him, in addition to the $1350 check, the $825.63 draft, and a balance of $863 on the check dated August 3, 1946, both of which have been referred to, the check for $2071.40 dated July 25, 1946, having been paid by that time. Sexton was brought from the fail in Ocilla to the office of Troup's attorney, and there paid to Troup, partly in cash and partly in personal property, the sum of $1291 for credit on the $1350 check, and gave him a note for $1703, secured by a mortgage on the abattoir of Sexton in Americus; the $1703 representing all that was then due by Sexton to Troup.

In the early part of May, 1947, Sexton was again arrested, this time in Harris County, on the same warrant on which he had been arrested in Columbus. On May 10, he was released on habeas corpus proceedings by the ordinary of Harris County.

Thereafter, on May 15, 1947, Troup swore out the two warrants against Sexton, designated in the beginning of this statement as (2) and (3). Troup further testified: 'I saw Mr. Sexton in Hamilton, Georgia, and he was there discharged on a writ of habeas corpus. I then returned to Ocilla and swore to facts upon which this [felony] warrant is based. I didn't tell the sheriff to do anything with the warrant--I went up to Judge Meeks' office and took out the warrant and left it in Judge Meeks' office. * * * I did deliver in November of last year a shipment of livestock in Irwin County, Georgia, to Mr. Sexton, amounting to this $800 and some odd dollars. He did not pay me for it at that time. I drew a draft on him for it. I understood that it was a cash transaction. I have never been paid that draft, and it is due. That is the basis of this warrant I took out before Judge Meeks. * * * He gave me a promissory note on it. * * * That was after he had gotten the livestock. * * * I would not have issued this warrant if Mr. Sexton had paid the mortgage and note on time. I was hoping Mr. Sexton wouldn't beat me.

'Q. Did you take it on hope, Mr. Troup? A. I take them on anything, sir. I did not think in November that Mr. Sexton meant to beat me. He said he gave me all he had. Yes, he volunteered the information that these were all his assets and he...