Smith v. Veach, (No. 6063.)

• Decision Date: 17 November 1927
• Docket Number: (No. 6063.)
• Citation: 165 Ga. 190,140 S.E. 356
• Parties: SMITH. v. VEACH, Warden.
• Court: Georgia Supreme Court

165 Ga. 190

140 S.E. 356

SMITH.

v.VEACH, Warden.

(No. 6063.)

Supreme Court of Georgia.

Nov. 17, 1927.

(Syllabus by Editorial Staff.)

Beck, P. J., and Hines, J., dissenting.

Error from Superior Court, Walker County; James Maddox, Judge.

Petition for habeas corpus by Tom Smith against E. C. Veach, Warden. Judgment for defendant, and plaintiff brings error. Reversed.

Graham Wright, of Rome, for plaintiff in error.

J. P. Kelly, Sol. Gen., of Rome, and M. Neil Andrews, of La Fayette, for defendant in error.

Syllabus. Opinion by the Court.

HILL, J. [1, 2] Where one was convicted of public drunkenness, and sentenced, on February 17, 1926, to pay a fine, and serve 12 months on the chain gang, but the sentence provided that, upon payment of the fine, the defendant be given leave to serve the chain gang sentence without the confines of the chain gang, and where, on November 10, 1926, while the defendant was out on probation, the court passed another order, without notice to the probationer, on motion of the sheriff, reciting that the probationer had violated the terms and conditions of the former order, and directing the sheriff to arrest and commit the probationer to the "chain gang instanter" to serve the remainder of the probation sentence, the time to run from his committal to the chain gang and where, on demand of the probationer that he be given a hearingbefore final execution of the second order, a hearing was had, and the court made a third order, on May 16, 1927, reciting that the probationer had violated the terms of the probation order, and directing that the second order be revoked, and the probationer be confined in the chain gang for the term of 98 days, to be computed from the time of his reception in the chain gang, and that the "probation sentence shall not run in favor of the defendant, the same being suspended, " and the probationer was placed on the chain gang under this last order and where, on May 17, 1927, the probationer sued out a petition for habeas corpus, and on the hearing the judge remanded him to the custody of the officer, after the term fixed by the original sentence had expired, the writ of habeas corpus should have been granted, and the court erred in remanding the probationer to the custody of the warden. The second order of the court of November 10, 1926, was void; the probationer having no notice or hearing previous to its passage. Roberts v. Lowry, 160 Ga. 494, 128 S. E. 746; Plunkett v. Miller, 161 Ga. 466, 131 S. E. 170; Acts...