State v. Thompson, 8806.

• Decision Date: 16 July 1932
• Docket Number: No. 8806.,8806.
• Court: Georgia Supreme Court
• Parties: STATE. v. THOMPSON.

175 Ga. 189

165 S.E. 34

STATE.

v.THOMPSON.

No. 8806.

Supreme Court of Georgia.

July 16, 1932.

Syllabus by the Court.

Where one has been convicted of a misdemeanor and has been placed on probation and the sentence of the court so molded as to allow him to serve the sentence outside the confines of the chain gang, jail, or other place of detention, in accordance with the provisions of the act of 1913 (Ga. Laws 1913, p. 112), and thereafter, but prior to the expiration of the sentence, the probationer is brought before the court on the charge that he has been delinquent in observing the rules prescribed by the court for his conduct, and where after due examination the court revokes its leave to the probationer to serve the remainder of his sentence outside the confines of the chain gang, jail, or other place of detention, and where subsequently the judge of the superior court (the probationer having been put on probation by the judge of a city court) sustains a certiorari sued out by the probationer and orders him discharged and relieved from all further liability in connection with the orders and judgment of the judge of the city court, the proceedings, both in the city court and in the superior court, as to the revocation of the probation order, constitute a criminal proceeding within the meaning of section 6139 of the Civil Code of 1910, providing in substance that "in any criminal proceeding" the defend-ant only "may except to any sentence, judgment, or decision, or decree" of the superior courts of this state.

Certified Questions from Court of Appeals.

C. A. Thompson was convicted of a misdemeanor, was placed on probation, his probation was revoked, the superior court sustained a certiorari sued out by the probationer and ordered him discharged, and the State brings error to the Court of Appeals, which certifies a question.

Question answered.

Answers to certified questions conformed to (Ga. App.) 165 S. E. 310.

See, also, (Sup.) 164 S. E. 202.

The Court of Appeals (in case No. 21770) certified the following question: "Where one has been convicted of a misdemeanor offense and has been placed on probation and his sentence so molded by the court as to allow him to serve the sentence outside the confines of the chain-gang, jail, or other place of detention, under the supervision of the court, and in such manner and on such conditions as the court may see fit to impose, in accordance with the provisions of the act of 1913 (Ga. Laws 1913, p. 112), and thereafter, but prior to the expiration of the sentence, the probationer is brought before the court on the charge that he has been delinquent in observing the rules prescribed by the court for his conduct, and where after due examination the court revokes its leave to the probationer to serve the remainder of his sentence outside the confines of the chain-gang, jail, or other place of detention, and where subsequently the judge of the superior court (the probationer having been put on probation by the judge of a city court) sustains a certiorari sued out by the probationer and orders him discharged and relieved from all further liability in connection with the orders and judgment of the judge of the city court, do the proceedings in the city court and in the superior court in reference to the revoking of the probation order constitute a criminal proceeding within the meaning of section 6139 of the Civil Code of 1910, which provides, in substance, that 'in any criminal proceeding' the defendant only 'may except to any sentence, judgment, or decision, or decree' of the superior courts of this State?" See, in this connection, State v. Jones, 7 Ga. 422; Antonopoulas v. State, 151 Ga. 466, 107 S. E. 156; Wimbish v. Reece, 170 Ga. 64, 152 S. E. 97.

John Y. Roberts, Sol., of Macon, for the State.

R. Douglas Feagin, of Macon, for defendant in error.

RUSSELL, C. J.

Section 6139 of the Civil Code of 1910 (so far as material to the question propounded by the Court of Appeals) declares: "Either party in any civil cause, and the defendant in any criminal proceeding, in the superior courts of this State, may except to any sentence, judgment, or decision, or decree of such court, or of the judge thereof in any matter heard at chambers." By the question propounded by the Court of Appeals we are asked to define the words "any criminal proceeding, " inasmuch as the Code only provides that "the defendant in any criminal proceeding * * * may except."

In State v. Jones, 7 Ga. 422, the ruling was: "A writ of error does not lie to this Court, in a criminal case, at the instance of the State." This statement has been repeated times without number. It is not necessary, for the purpose of the question, to decide at this time whether this general rule, like all other general rules, is subject to exception. From a careful reading of the opinion of the court delivered by Judge Nisbet in the Jones Case it is plain that the statement in the headnote quoted is based upon consideration of the fundamental rule of the common law embodied in the Fifth Amendment to the Constitution of the United States, which declares: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." It was the maxim quoted by Judge Nisbet, "Nene debet bis vesari pro una et eadem causa." It is plain that the ruling in the Jones Case was not intended to be broader than the facts of the particular case; for after referring to the old Roman maxim and the Fifth Amendment to the Federal Constitution, Judge Nisbet proceeded to say: "I do not mean to say, that if otherwise entitled to the writ of error, the State would in this case be precluded by the operation of this provision of the Constitution; for according to the most liberal construction of it. a defendant is protected from a second trial, only where, upon a good indictment, the Jury have been charged with the prisoner, and have been discharged without legal necessity--other constructions requiring that they shall be charged with the prisoner upon a sufficient indictment, and have delivered themselves of the charge by a verdict. I express no opinion on these points; it...