Brown v. Clarke, 172 Ga. 524

172 Ga. 524 | Ga. | 1931

Hines, J.

Nollie Brown, on August 6, 1929, entered a plea of guilty to the charge, of vagrancy in the criminal court of Atlanta, and was sentenced to serve twelve months on the public works of Pulton County. On November 8, 1929, that court suspended this sentence at the discretion of the court. On September 24, 1930, the judge revoked his order suspending said sentence, upon the ground that the defendant had violated the condition upon which the sentence was suspended; and directed tji'e sheriff to déliver him •to the warden of the public works of Pulton County to serve the remainder of his sentence. The defendant was so delivered by the sheriff. The defendant had served three months of his sentence when it was suspended. He filed his petition against Clarke as superintendent of the public works of said county, in which lie sought by the writ of habeas corpus to be discharged from confinement and service upon, the public works of said county, upon the ground that more than twelve months had expired since he began work under said sentence upon the chain-gang, that the order of the judge revoking the order suspending his sentence was null and void, as the judge had no legal right or authority to pass said order, and did not stop the running of the time of his sentence, for which reason his further detention was. illegal.

The defendant haying been released from custody under a void order of the court before completing service of his sentence, it was not error for the judge hearing the application for habeas corpus to adjudge that he be remanded to custody to serve the remainder of his sentence. Every phase of this question has been discussed and settled by prior adjudications of this court. Conley v. Pope, 161 Ga. 462 (131 S. E. 168); Kemp v. Meads, 162 Ga. 55 (132 S. E. 533); Scott v. McClelland, 162 Ga. 443 (133 S. E. 923); Smith v. Jackson, 164 Ga. 188 (138 S. E. 52); Watters v. Betts, 171 Ga. 826 (156 S. E. 671). His sentence was not tolled by the period during which he did not serve in the chain-gang by reason of the void order of the judge suspending his sentence; and- he was properly remanded to serve the remainder of his sentence.

Judgment affirmed.

All the Justices concur.