Shaw v. Benton

• Decision Date: 18 November 1918
• Docket Number: 945.
• Citation: 97 S.E. 520,148 Ga. 589
• Parties: SHAW v. BENTON, DEPUTY WARDEN.
• Court: Georgia Supreme Court

97 S.E. 520

148 Ga. 589

SHAW v. BENTON, DEPUTY WARDEN.

No. 945.

Supreme Court of Georgia

November 18, 1918

Syllabus by the Court.

B. H Shaw was convicted in the city court of Savannah, on November 15, 1917, for violation of the prohibition laws of the state and sentenced to pay a fine of $1,000 and costs, or, in lieu thereof, to labor upon the chain gang of Chatham county for six months. He moved for a new trial, which was denied on December 22, 1917. Thereupon he sued out a writ of error, and the Court of Appeals affirmed the judgment (95 S.E. 477). Before the remittitur from that court was forwarded, the judge of the city court of Savannah, on April 5, 1918, and after the adjournment of the term at which the trial was had and the sentence imposed, passed an order so amending the sentence that it should be $700 fine and costs, or, in lieu thereof, six months upon the chain gang. On April 15, 1918 the remittitur from the Court of Appeals was made the judgment of the city court, and the trial judge at the same time amended the sentence by rescinding the order of April 5th, and restoring the original sentence imposing a fine of $1,000 and costs, or, in lieu thereof, six months on the chain gang. Shaw thereafter tendered to the clerk of the city court, and to the solicitor general of the Eastern circuit who prosecuted the case, the sum of $700 and costs in payment of the fine imposed in the amending order of April 5th. The tender was refused. Shaw, being in the custody of the deputy warden and incarcerated as a prisoner in the convict farm of Chatham county, sued out a writ of habeas corpus against the warden to obtain a discharge. Upon the hearing the judge of the superior court refused to discharge Shaw, and remanded him to the custody of the warden.

Held: Under numerous decisions of this court the trial judge, after adjournment of the term at which the sentence was imposed by him, had no authority to change or modify the original sentence. Porter v. Garmony, 148 Ga. 261, 96 S.E. 426, and cases there cited.

It was not error to refuse to grant a discharge upon the writ of habeas corpus.

Error from Superior Court, Chatham County; P. W. Meldrim, Judge.

Habeas corpus by B. H. Shaw against Andy Benton, Deputy Warden. Petitioner remanded to custody, and he brings error. Affirmed.

Robt. L. Colding, of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., of Savannah, for defendant in error...