134 Ga. 307 | Ga. | 1910
On June 21, during the May term, 1909, George Burge was convicted and sentenced in the superior court in Fulton county. Judge S. P. Gilbert, of the Chattahoochee circuit, presided. The sentence was not executed, and on November 30, 1909, Judge L. S. Boan, of the Stone Mountain circuit, presiding, the prisoner was resentenced. While he was in the custody of the sheriff, and under sentence of the court, Mrs. Mary E. Burge, the mother of George Burge, instituted habeas-eorpus proceedings for his discharge. It was contended that his detention as a convict was illegal, because the court at which he was convicted was not in lawful session; and because the judge who presided at the trial, being judge of a different circuit, was not authorized to preside in the superior court in Fulton county, and for a similar reason that the judge who presided at the time the sentence was imposed was not authorized to preside in the superior court in Fulton county. In support of the contention that the court was not in lawful session, the act of the General Assembly approved August 18, 1905 (Acts 1905, p. 89), entitled "An act to change the terms of Fulton superior court, to create new and additional terms therefor, and for other purposes,'” was assailed as being unconstitutional, on several grounds. The case was tried, and the judge denied the prayer of the petition. The applicant excepted to the judgment.