Williams v. State

• Citation: 162 Ga. 327,133 S.E. 843
• Decision Date: 18 June 1926
• Docket Number: (No. 5211.)
• Parties: WILLIAMS . v. STATE.
• Court: Supreme Court of Georgia

162 Ga. 327

133 S.E. 843

WILLIAMS .

v.STATE.

(No. 5211.)

Supreme Court of Georgia.

June 18, 1926.

(Syllabus by the Court.)

The exceptions in which it is insisted that the Act of the General Assembly approved August 16. 1013, providing for probation of offenders in certain cases (Ga. L. 1913, p. 112), is unconstitutional, are not meritorious.

(a) The aforesaid act is not unconstitutional, for the reason "that the same is in conflict with article 5 [section 1], par. 12, of the Constitution of the state of Georgia, in that the same attempts to delegate to the courts of this state the pardoning or suspending of a sentence of a person convicted of crime, when such power under said constitutional provision is lodged in the Governor of the state."

(b) Nor is said act in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States, upon the ground that the act attempts to cause the probationer to serve an antecedent sentence for the commission of an alleged subsequent offense, without any provision for any legal proceeding or trial to determine his guilt or innocence as to the second offense.

(c) Nor is the aforesaid act in violation of that equal protection of the laws guaranteed to all citizens.

(d) Nor is the aforesaid act unconstitutional because in violation of article 6, § 18, par. 1, of the Constitution of Georgia, because no provision is made for a trial by jury upon the hearing had to determine whether the parole shall be revoked.

One, who is sentenced upon his plea of guilty in a misdemeanor to pay a fixed sum of money as a fine, and also to serve a term named in the sentence in a chain gang, jail, or elsewhere as may be designated by the proper authorities, with a provision in said sentence that upon payment of the fine the defendant may be released from Custody and serve the chain gang or other 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 it may see fit, " and who pays the fine and obtains his release from custody upon his tacit acceptance of the terms of the parole, is not in a position to assert that the provision for his probation in the sentence is void for any reason. Such an assignment of error presents nothing for the consideration of this court, because, even if the contention of the person sentenced were sustained and the portion of the sentence relating to his parole avoided, still the sentence of the court, inasmuch as it legally imposed no greater penalty than that authorized by law (being unaffected by the parole provision), would become immediately effective and enforceable.

Upon the hearing which it is provided must be had before the court in order that "the court after due examination may revoke" a parole or probation, the parole cannot lawfully be revoked as a mere matter of caprice. In such hearing the judge is the sole judge of the credibility of the witnesses, but he is not permitted to withdraw a parole, ' unless there be sufficient evidence to authorize a finding that one or more of the conditions upon which the parole was granted-has been violated. Consequently, where, in a hearing such as above referred to, no evidence is produced before the court from which it can be determined whether the criminal act charged against the probationer as in violation of his parole was committed prior to the imposition of the sentence or subsequent thereto, a finding revoking the parole would be contrary to law and would not be authorized. The evidence at the "examination" before the judge of the city court did not sufficiently disclose where or when the alleged violation of the probationer's parole occurred. There was a review of the judgment revoking the parole of the probationer by certiorari, and the judge of the superior court erred in overruling the certiorari and in not sustaining the same upon the ground that the evidence in the record was insufficient to show that there had been a breach by the defendant of the conditions upon which the parole had been granted.

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

Beck, P. J., dissenting in part.

Certiorari from Court of Appeals.

Joe Williams was convicted of misdemeanor, was sentenced and paroled. Parole was revoked, certiorari to the superior court was denied, and defendant brings error.

On November 22, 1924, in the city court of Richmond county, Joe Williams pleaded guilty to the offense of a misdemeanor. The court imposed the following sentence:

"The above-named defendant having pleaded guilty to the above-stated case to the charge of violating the prohibition law, at the present term of the city court of Richmond county, it is ordered that said Joe Williams pay a fine of $200 to include the cost of this prosecution, and that he do work in the chain gang on the public roads of said county, or on such other public works as the county or state authorities may employ the chain gang for the term of 12 months. By virtue of the power and authority in me vested by the Acts of the General Assembly of the state of Georgia, it is ordered that, upon the immediate payment of the fine of $200. the sentence to work in the chain gang on the public roads of said county, or on such other public works as the county or state authorities may employ the chain gang for the term of 12 months, will be suspended and the defendant paroled and permitted to serve said sentence outside the confines of the chain gang, upon condition that he do not have in his possession or control in this state any alcoholic, spirituous, malt, or other intoxicating liquors, or any of the beverages, liquors, or drinks prohibited by law, and shall not violate any of the provisions of the prohibition laws of Georgia; said parole to continue as long as the above conditions are complied with. Should the said defendant violate any of the said conditions of said parole, such violation shall of itself revoke the parole hereby granted, and the sentence herein imposed shall immediately become operative."

The defendant paid the fine of $200 imposed by the court, and was released from custody without being placed, so far as appears from the record, in the custody of either a volunteer probation officer or a county probation officer as provided by the act of 1913 (Acts 1913, pp. 112, 113, 114). Thereafter the solicitor of the city court of Richmond county filed a petition praying that the parole of Joe H. Williams be revoked, and that he be required to serve the remainder of his sentence within the confines of the said chain gang. The petition for revocation was based upon the following grounds:

"(1) That on the 25th day of November, 1924, Joe H. Williams entered a plea of guilty Of violating the prohibition laws of the state of Georgia, and was sentenced at the October term, 1924, of the city court of Richmond coun ty, to pay a fine of $200 and serve 12 months on the chain gang; (2) that the said defendant was permitted to serve the chain gang sentence outside the confines of the chain gang upon the condition that he would not again violate the prohibition laws of said state; (3) that said defendant paid said fine and was paroled in accordance with said sentence; (4) that subsequent to said sentence, to wit, on the 25th day of November, 1924, the said Joe H. Williams violated the terms of his said parole and was guilty of violating the prohibition laws of Georgia."

The defendant was arrested without a warrant, for the alleged violation of said parole on February 27, 1925, and was served with a copy of the petition. On February 27, 1925, on the call of the case for a hearing upon the petition for revocation of the parole, the defendant interposed a demurrer to said petition, which was overruled. The demurrer was based upon the following grounds:

"(1) Because under the allegations of said petition there is no legal ground upon which to revoke said parole. (2) Because the Act of the General Assembly, approved August 16, 1913, in reference to probation of offenders in certain cases (No. 171, Acts 1913, p. 112), is unconstitutional and void, in that the same is in conflict with article 5, par. 12, of the Constitution of the state of Georgia, embodied in section 6481 of the Code of Georgia, in that the same attempts to delegate to the courts of this state of the pardoning or suspending of a sentence of a person convicted of crime, when such power under said constitutional provisions is lodged in the Governor of the state, and said act is violative of the Fourteenth Amendment of the Constitution of the United States, which prohibits the deprivation of any person of his life, liberty, or property without due process of law, and said act of 1913 is in violation of said constitutional federal provision, in that it is attempted to cause him to serve antecedent sentence for the commission of an alleged subsequent crime without any provision for any legal proceeding or trial to determine his guilt or innocence as to such second offense. (3) Because said act of 1913 (page 112) is in violation of the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall 'deny to any person within its jurisdiction the equal protection of laws, ' and to force him to serve upon the chain gang as a punishment for a second offense of which he is presumed to be innocent would not give him equal protection of the laws, in that a defendant similarly charged is entitled to trial, and said act of the General Assembly is in violation to article 6, § IS, par. 1, of...