Wood v. State

• Citation: 21 S.E.2d. 915
• Decision Date: 25 September 1942
• Docket Number: No. 29649.,29649.
• Parties: WOOD. v. STATE.
• Court: United States Court of Appeals (Georgia)

21 S.E.2d. 915

WOOD.

v.STATE.

No. 29649.

Court of Appeals of Georgia,

Division No. 1.

Sept. 25, 1942.

Syllabus by the Court.

(a) Criminal statutes are to be strictly construed.

(b) Repeal by implication obtains in Georgia. Repeal by implication is not favored.

(c) To repeal a statute by implication the provisions of the repealing act must be so repulsive to the former as to be irreconcilable with it.

(d) The repeal of the repealing act may, under certain conditions, revive the provisions of the original act, regardless of whether there are formal words for that purpose.

(e) In determining whether a penal statute has been repealed by implication two principles must be kept in mind: (1) all penal statutes must be strictly construed, (2) the old law, the evil, and the remedy.

(f) A sentence passed by the court on August 23, 1941, imposing a twelve-months term on the public works of the county, but suspending execution thereof until further order of the court, could not be revoked on March 27, 1942, and a sentence imposed of twelve months on the public works from the last-mentioned date. The court could, however, under such a sentence as this record reveals, with or without cause, during the period of the twelve months specified in the original sentence, revoke the suspended sentence and require the defendant to serve the unexpired time thereof from the date of revocation.

Error from Superior Court, Jackson County; Clifford Pratt, Judge.

Jim Wood was convicted of an offense. A sentence of imprisonment was suspended. To review a judgment revoking the suspension, the defendant brings error.

Judgment affirmed with directions.

On August 23, 1941, the court passed the following sentence "That the defendant, J. B. Wood, pay a fine of five hundred ($500) dollars, including all costs of this prosecution, and that the defendant be put to work and labor on the public works of the County of Jackson, or otherwise, as the commissioners of said county may direct, for the space of twelve months to be computed from the date of his delivery. Further ordered that the twelve months public-works sentence be and same is suspended upon payment by said defendant on or before Aug. 30, 1941, until further order of the court." The defendant paid the fine specified in the order. After notice and a hearing the judge who had imposed the above sentence passed the following order on March 27, 1942: "That the original sentence in the above-stated case against defendant, J. B. Wood, dated the 23rd day of August, 1941, that defendant be put to work and labor on the public works for the space of twelve months be now enforced and that the said defendant be apprehended and taken into custody by the sheriff of Jackson Co. or other lawful officer, and turned over to the county authorities of Jackson Co. for the execution of said original sentence. This the 27th day of March, 1942." The defendant, by direct bill of exceptions tests the authority of the judge to impose the last order.

Joe Quillian, of Winder, for plaintiff in error.

Hope D. Stark, Sol. Gen, of Lawrence-ville, for defendant in error.

GARDNER, Judge.

The contentions present for decision whether the provision of the act of March 24, 1933, Ga.L.1933, p. 266, Code, § 27-2706, are now of force. That act provides:

"Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by the authority of same, that in all criminal cases tried in this State, in which the defendant or defendants are found guilty or in which a plea of guilty is entered, and the trial judge after imposing sentence further provided that the execution of such sentence shall be suspended, it shall have the effect of probating such defendant or defendants as provided in sections 1081 (a)-(d) Park's Code of Georgia.

"Section 2. Be it further enacted by the authority aforesaid, that all persons who have heretofore been found guilty or who have entered a plea of guilty to any offense in this State, and on whom sentence has been passed but the execution of such sentence suspended by order of the trial court, shall be deemed probated offenders for the term of their respective sentences from the date of the passage of this act. * * *

"Section 3. Be it further enacted, that all laws and parts of laws in conflict with this act be and the same are hereby repealed."

The judge revoked the original sentence on the theory, and so stated, that the provisions of the act of 1933 were repealed by necessary implication by the act of February 16, 1938 (Ga.L, Ex.Sess, 1937-1938, p. 326), which reads as follows:

"Section 1. In all criminal trials, whether misdemeanor or felony, wherein the defendant does not enter a plea of guilt, the jury shall pass only on the question of the guilt or innocence of the accused; and it shall be the duty of the trial judge to fix sentence as provided by law, upon the conviction or plea of guilt of the defendant.

"Section 2. Before passing sentence, it shall be the duty of the trial judge to make investigation from the best available sources of the case history of the defendant, and to take the findings of said investigation into consideration in fixing and passing sentence on defendant.

"Section 3. After conviction or plea of guilt for any offense, except a crime punishable by death or life imprisonment, the trial judge may, if he deems it for the best interest of society and the defendant, suspend the imposition or execution of sentence, and may also place the defendant on probation, or may impose a fine applicable to the offense, and also place the defendant on probation.

"Section 4. This Act shall become effective upon passage and approval.

"Section 5. All laws and parts of laws in conflict with this Act be and the same are hereby repealed."

It is further contended that since the act of March 24, 1939, Ga.L.1939, p. 285, Code Ann. § 27-2525 et seq, repealed in toto the Act of 1938, no inhibition or restriction surrounds the act of a judge suspending a misdemeanor sentence.. It is contended that so far as a suspended sentence is concerned the law stands as it stood before the passage of the act of 1933 set out above and that such suspended sentence may be imposed at any time in accordance with a line of decisions holding to this effect. The leading case on this subject is Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175.

The act of 1939 provides that the act of 1938, supra, "be and the same is hereby repealed in its entirety." The act provides further: "Section 2. That from and after the passage of this Act all felonies under the laws of this State, except treason, insurrection, murder, robbery by force, manslaughter, assault with intent to rape, rape sodomy, foeticide, mayhem, seduction, arson, burning railroad bridges, train wrecking, destroying, injuring or obstructing railroads, perjury, false swearing and subornation of perjury and false swearing, shall be punished by imprisonment and labor in the penitentiary for the terms provided by law; but on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crimes shall be punished as misdemeanors. If the judge trying the case sees proper, he may, in fixing the punishment, reduce such felonies to misdemeanors.

"Section 3. That from and after the passage of this Act the jury in their verdict on the trial of all cases of felonies not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as a punishment for said crime, and the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury; provided that in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit.

"Section 4. That from and after the passage of this Act the trial judge may, in all prosecutions for crime except as hereinafter provided, where the defendant has been convicted either upon a trial or upon his plea, where the judge has power to sentence such defendant to the chaingang, jail or other place of detention, where it appears to the satisfaction of the judge that the circumstances of the case and the public good do not demand or require the defendant's incarceration, mold his sentence so as to allow the defendant to serve same outside the confines of the chaingang, jail or other place of detention, under the supervision of the court, and in such manner and on such conditions as the judge may see fit, giving the reasons therefor, which shall be made part of the record. Nothing in this section shall in any manner affect the laws providing the method of dealing with delinquent, wayward or dependent children, in those counties which have or may establish juvenile courts. And no person shall have the benefit of this section except those convicted of misdemeanors or felonies which have been reduced to misdemeanors either by the judge upon his own motion or upon recommendation of the jury.

"Section 5. All laws or parts of laws in conflict with this Act are hereby repealed."

The only question to be decided is whether the provisions of the act of 1933, to the effect that a suspended sentence shall have the effect of probating the defendant as provided in §§ 1081(a)-1081(d) Park's Code of Georgia, now Code §§ 27-2702-27-2705, were repealed by the subsequent acts of the legislature.

(a) Criminal statutes are to be strictly construed. This is elementary and needs no citation of authority.

(b) The act of 1938 makes no mention of the provisions of the act of 1933. The act of 1933 was not expressly repealed by the act of 1938. If the Act of 1933 was repealed by the subsequent act it was by implication only. It is well established that repeal by implication obtains in Georgia. See in this connection Edalgo v. Southern Ry. Co., 129 Ga. 258, 266, 58 S.E. 846; Collins...