46 S.E.2d 136 | Ga. | 1948
1. A sufficient assignment of error is not made by the contention that a sentence is valid only for the minimum term, where it is not shown how, or in what manner, the sentence imposed is invalid for a longer period of time than the minimum term.
2. Where a trial judge, as the trior of the facts, renders a judgment that is supported by evidence, such judgment will not be set aside where it is not shown that the judge has abused his discretion.
From an analysis of the petition, and the answer of the warden, it appears that the facts of the case are as follows: The petitioner was sentenced in Stewart Superior Court, on October 19, 1932, for a term of not less than 10 and not more than 20 years. On August 30, 1940, he was granted a parole, under stated conditions, by the State Prison and Parole Commission, and in the order granting the parole it was recited that the maximum term of his sentence would expire on April 19, 1947. On February 7, 1941, the State Prison and Parole Commission revoked the parole because the petitioner had violated its terms, as shown by his confession of burglary. It was ordered that he be remanded to the custody of the State Board of Penal Administration to serve the remainder of his maximum sentence. On April 22, 1941, the petitioner pleaded guilty to the offense of burglary, and was sentenced in Stewart Superior Court to a term of 2 years minimum, and 3 years maximum. The order fixing the sentence expressly stated that it was to commence from the date of the sentence.
It is the contention of the prisoner that the second sentence was served concurrently with the first sentence, and that under the order of the State Prison and Parole Commission granting his parole, the maximum sentence expired on April 19, 1947, and he has therefore fully served both sentences and should be released.
The warden states that he is holding the petitioner under the authority of the State Board of Corrections, and the board contends that all statutory "good time" earned from the time the *265 petitioner entered the penitentiary up to the date of the revocation of his parole was forfeited by his misconduct in committing burglary; and that his maximum sentence, allowing for all possible "good time" which he can subsequently earn, will not expire until July 4, 1948. It is also the contention of the board that the second sentence must be served consecutively with the first sentence, and the date of the completion of the minimum time of the second sentence, allowing for all "good time," will be January 12, 1950.
The trial judge ruled that the prisoner is being lawfully restrained of his liberty under the sentence of October 19, 1932, which he can not complete until July 4, 1948, as computed by the State Board of Corrections, and the petitioner was remanded to the custody of the warden. The court ruled that the sentence of April 22, 1941, was served concurrently with the previous sentence.
The petitioner assigns error upon this judgment, on the ground that the sentence of October 19, 1932, was a valid sentence for only 10 years, and the petitioner has long since served this term; and on the ground that if any longer sentence than the minimum of 10 years was lawfully imposed by this indeterminate sentence, such sentence was adjudged to expire on April 19, 1947, by the authority authorized to make such ascertainment.
By cross-bill of exceptions, James T. Law, Warden, excepted to that portion of the order which decreed that the second sentence was served concurrently with the first sentence. 1. Counsel agree that three questions are brought to this court by the bills of exceptions, as follows: "1. was the first sentence a valid sentence for more than ten years? 2. If it was, did its maximum term expire April 19, 1947? 3. Under the law, was the second sentence to be served concurrently with the first sentence or subsequently to its expiration?"
The petition for writ of habeas corpus alleges: The cause or pretense of the restraint of the petitioner is a sentence imposed upon him in Stewart Superior Court at the April term, 1941, in which the petitioner was sentenced to serve a term of 2 years *266 minimum, and 3 years maximum, the sentence to be computed from the date of sentence, April 22, 1941. The cause or pretense for still holding him under such sentence is the claim that he must serve the sentence imposed April 22, 1941, after the expiration of a sentence imposed on October 19, 1932. The sentence imposed in 1941 did not expressly provide that it should be served at the expiration of the previous sentence, but on the contrary, expressly provided that it should be computed from its date. As a matter of law, the sentence was served concurrently with the previously imposed sentence, and the respondent is illegally holding the petitioner in involuntary servitude.
The petition for the writ of habeas corpus made no attack on the validity of the sentence imposed on the plaintiff in error in October, 1932, and it can not be attacked for the first time in the bill of exceptions. Under the rule that he who asserts error must show error (Loveless v. McCollum,
2. A copy of the parole granted to the applicant on August 30, 1940, recites that the maximum term of the sentence imposed in October, 1932, would expire on April 19, 1947. It appears from the record that the parole of August, 1940, was revoked on February 7, 1941. The trial court was authorized to find from the evidence that the order of parole of August, 1940, provided for an allowance of "good time" (or reduction in the maximum sentence for good conduct) under §§ 27-2502, 77-341, 77-363 (14), Code, Ann. Supp., but that such reduction for good conduct was not actually earned by the prisoner. The judgment that the expiration date of the first sentence imposed on the prisoner would be July 4, 1948, is supported by evidence.
Under the foregoing opinion, the judgment on the main bill of exceptions will be affirmed. Since no further hearing of the habeas corpus proceeding will be necessitated under such affirmance, the cross-bill of exceptions will be dismissed, but will be so dismissed without prejudice. *267 Judgment affirmed on the main bill; cross-bill dismissedwithout prejudice. All the Justice concur, except Wyatt, J., whotook no part in the consideration or decision of this case.