Whittle v. Jones
| Decision Date | 06 October 1944 |
| Docket Number | 14956,14958. |
| Citation | 32 S.E.2d 94,198 Ga. 538 |
| Parties | WHITTLE Sheriff, v. JONES. JONES v. WHITTLE, Sheriff. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 22, 1944.
Syllabus by the Court.
1. The motion to dismiss the writ of error in the main bill is denied.
2. If an amendment to the constitution of this State which in effect takes from the Governor the pardoning power and places it in the hands of a board of pardons and paroles, is, as to a person convicted of a crime committed before the adoption of said amendment, an ex post facto law, contrary to the constitution of the United States, the former provision in the State constitution would, as to such person, remain effective.
3. When an amendment to the State constitution is silent as to whether it shall be given a retroactive operation, and if to do so, in certain instances, would render it void as being in effect an ex post facto law, it will be so construed as to give it a prospective application only.
4. This court will not pass on the constitutionality of a so-called law when it is challenged by a party whose rights are not affected thereby, nor until an attempt is made to exercise some right claimed under the provision sought to be attacked affecting the rights of the attacking party.
5. Every court has the inherent power to correct its own records to make them speak the truth.
6. The judgment of reversal of an order in a habeas corpus case discharging one from custody, carries with it a reversal of the order of exoneretur on a bail bond which the trial court improvidently permitted to be given after the petition was filed, the condition of the bond being his appearance upon the hearing of the habeas corpus case and responding to the judgment of the court thereon.
This is a habeas corpus case brought by Jones against the sheriff who Jones alleged was illegally restraining him of his liberty under a pretended sentence of Fulton superior court. The date of Jones' conviction was May 8, 1942. At that time, and at the date of the crime for which he was convicted, paragraph 12 of section 1 of article 5 of the constitution of this State provided that the Governor shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons. On August 3, 1943, Acts 1943, p. 43, a constitutional amendment was adopted, which limited the foregoing power of the Governor to his right to suspend the execution of sentence of death after conviction until the State Board of Pardons and Paroles shall have an opportunity of hearing the application of the convicted person, and the further right in the Governor to suspend the execution of a conviction of treason and report the case to the General Assembly at the next meeting thereof, with the authority given the legislature then to either pardon, commute the sentence, direct its execution, or grant a further reprieve. The same amendment created a State Board of Pardons and Paroles, lodging with them the power to grant reprieves, pardons, and paroles, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence for any offense against the State, after conviction, except in cases of treason or impeachment, and except in cases in which the Governor refuses to suspend a sentence of death. The board were given authority to make such rules and regulations as may be authorized by law. A copy of the rules of the Board is attached to the application for habeas corpus. Among the rules are: One, that a pardon will be granted only to that individual who can satisfactorily prove his innocence; another, that applicants for commutation must furnish the board with a transcript of the court record and evidence; and a third rule, which in effect provides that persons convicted of a felony will become eligible to apply for parole consideration only upon completion of one-third of the minimum sentence.
The applicant, with respect to the change in the State constitution, takes this position: That this portion of the constitution is ex post facto and retroactive as to him; and that there has been substituted, in lieu of the Governor, a State board of pardons and paroles composed of three members appointed by the Governor, as the only board or persons authorized under the constitution as amended to reprieve, pardon, or commute the penalty against the applicant. That said amendment is void and unconstitutional as against him and is in violation of article 1, section 10, clause 1 of the constitution of the United States , which prohibits a State from entering into any treaty, alliance, or confederation; from granting letters of marque and reprisal; from coining money and emitting bills of credit; from passing any bill of attainder, ex post facto law, or law impairing the obligations of contracts, or granting any title of nobility. That the amendment deprives him of a valuable and valid legal and constitutional right of having the Governor of the State pass upon his right to be reprieved, paroled, or pardoned. That said amendment is a substantial withdrawal of the petitioner's rights, places him at a disadvantage, and requires that he convince three persons of his right to have his sentence commuted or a pardon granted instead of the one person as guaranteed to him under the constitution at the time of his conviction. That he is further injured as a result of said change because the board of pardons and paroles, created by the amendment and appointed by the Governor, has adopted a rule that they will not hear or consider an application for pardon, except where it is satisfactorily shown to them that the accused is innocent of the crime charged, or reprieve or parole until the person incarcerated has served one-third of the sentence imposed, whereas the Governor had the unlimited power to grant a pardon whether the person was innocent or guilty and to grant a parole before the service of any portion of the sentence. That the petitioner has been deprived of an opportunity to raise and have decided the legal rights above asserted, because said amendment was voted upon and adopted after the petitioner's motion for new trial had been overruled and after the case had been appealed to the Court of Appeals of Georgia; and that the petitioner could not present said question in that court because that court and the Supreme Court of Georgia refuse to hear, consider, and pass upon any question not presented in the trial court. That, as applied to the applicant, said amendment deprives him of due process of law as guaranteed to him under the constitution of the United States, to the effect that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside; and which forbids any State from making or enforcing any law which abridges the privileges or immunities of citizens of the United States, from depriving any person of life, liberty, or property, without due process of law, and from denying any person within its jurisdiction the equal protection of the laws.
The petitioner prayed for his discharge, and on the hearing was discharged from custody. The sheriff excepted. Jones filed a cross-bill.
In the cross-bill, Jones excepted to the overruling of his demurrer to the part of the response which set up that the sentence of the petitioner had been amended on May 10, 1944 also to the ruling admitting in evidence the amended sentence; and to the holding that the sentence imposed for perjury instead of subornation of perjury is not void because of the difference in the name of the sentence; and to the overruling of his prayer for a discharge on this ground. The record shows that Jones was indicted in Fulton superior court for the offense of subornation of perjury, the indictment containing two counts, and bearing the clerk's number, 54,654; that he was tried on said charge and convicted by the jury on both counts, the verdict fixing the penalty. He was sentenced in accordance with the verdict. The sentences bear the same case number as the indictment, but each refers to the crime as perjury. He filed a motion for new trial, the orders thereon bearing the same case number, and the motion was overruled. He carried his case to the Court of Appeals, the bill of exceptions reciting that he had been tried for the offense of subornation of perjury and convicted of said offense. The judgment was affirmed by the Court of Appeals. Two days after the petition for habeas corpus was presented, but before a hearing was had thereon, a written motion was filed by the solicitor-general, which recited that by clerical error and inadvertence in preparing the forms of the sentence, they were headed 'Sentence: Subornation of Perjury,' the words 'subornation of' being omitted; and that the sentences were imposed on the verdict finding Jones guilty of subornation of perjury, and on an indictment charging him therewith. The motion prayed that the sentences be amended by inserting at the top of each, between the word 'charge' and the word 'perjury,' the words 'subornation of.' Acting thereon, on the same day, the judge of Fulton superior court entered an order which recited that it appeared from an inspection of the record that the allegations of the motion were true, and he ordered that the sentences be amended as prayed. This was done at a term of court subsequently to the one during which the original sentences were entered, and apparently without notice to Jones. Original sentences, as...
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Walker v. State
...against ex post facto and retroactive laws (Code Ann. § 2-302, Const. art. I, § III, par. 2) does not apply. In Whittle v. Jones, 198 Ga. 538, 543(3), 32 S.E.2d 94, 98, it is held that: 'A repealing Act will not be given a retroactive operation so as to divest previously acquired rights (ci......
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Wright v. State, 21430
...act' need not be considered. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031; Whittle v. Jones, 198 Ga. 538, 544, 32 S.E.2d 94; Kryder v. State, 212 Ga. 272, 274, 91 S.E.2d 612. Neither does the defendants' purported attack on the Code section the Georgi......
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Glover v. Colbert
...(1943). "A repealing act will not be given a retroactive operation so as to divest previously acquired rights. [Cit.]" Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94 (1944). As later recognized in State Farm Mut. Auto. Ins. v. Young, 207 Ga.App. 355, 357, 427 S.E.2d 835 (1993), the Court in Te......
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Keenan v. State
...the constitutionality of a statute "when it is challenged by a party whose rights are not affected by it. [Cits.]" Whittle v. Jones, 198 Ga. 538, 544(4), 32 S.E.2d 94 (1944). See also Taylor v. State, 261 Ga. 415(2)(b), 405 S.E.2d 496 (1991). Accordingly, our determination of the constituti......