172 Ga. 467 | Ga. | 1931
Day was tried at the August term, 1930, of Milton superior court, in two cases, one for stabbing, and the other for transporting intoxicating liquor. In the trials of these cases Judge C. C. Pittman of the Cherokee Circuit presided in the place of Judge John S. Wood of the Blue Bidge Circuit. Day was convicted in both of these cases. In the stabbing case a fine of $100, to include the costs, was imposed upon him, and in the liquor case a fine of $150 was imposed. Sentences were upon prepared forms providing for fines and alternative chain-gang sentences, with blanks therein for the insertion of the amounts of the fines and the number of months the defendant was to serve on the chain-gang. These blanks for the number of the months were not filled out at the time the sentences were signed by the judge. On October 23, 1930, the sheriff mailed these sentences to Judge Pittman at Cartersville, and called his attention to the fact that the blanks for the insertion of the number of months which the defendant had to serve on the chain-gang under the alternative sentences had not-been filled in. Thereupon Judge Pittman, at Cartersville, filled the blank in the alternative sentence in the stabbing case, by inserting therein the figure four before the word “months,” and in the liquor case by inserting in the blank .the figure nine before the word “months,” and then returned the sentences so amended to the sheriff of Milton County. At that time the August term, 1930, of Milton superior court had not been adjourned. On the hearing of the application for habeas corpus the applicant introduced evidence tending to show that the oral sentences pronounced by the trial judge in these cases did not pro
On October 31, 1930, Day brought before Judge Wood his application for the writ of habeas corpus against A. W. Smith, sheriff. The applicant based his right to this writ upon the ground that the sheriff was illegally restraining him of his liberty by holding him as a prisoner in the common jail of that county under the 'alternate sentences above referred to. He asserted that the chain-gang portions of these sentenses were void, because the amendments thereto by filling in the blanks for the number of months of .service in the chain-gang were without authority off law; because the judge had no jurisdiction at that time over these cases; and because these amendments were made without notice to him and an opportunity to be heard. He further alleged that he had been arrested by the sheriff of Terrell County, at the instance of the sheriff of Milton County, under said sentences; that thereupon he sued out, on October 25, 1930, a habeas-corpus proceeding before the ordinary of Terrell County, which was tried before the clerk of the superior court of that county, acting in the place of the ordinary, on October 29, 1930, by reason of the severe illness of the ordinary; that the sheriff of Milton County was represented by his attorney in said proceeding; that on the hearing of this application for habeas corpus these sentences were introduced in evidence by counsel for the sheriff of Milton County; that the question was tried upon its merits; and that at the conclusion of the trial the clerk of the superior court, acting in stead of the ordinary, rendered a judgment sustaining the writ of habeas corpus, and discharging petitioner from custody under said sentences. Applicant attaches to his application in this case copies of the habeas-corpus proceedings and the judgment discharging him. This judgment was rendered on Oe~. tober 29, 1930. Applicant sets up that the judgment of the clerk of the superior court of Terrell County, acting in the place of the ordinary, discharging him from confinement under said'sentences, is a complete' bar to their enforcement. The defense to the habeascorpus proceedings before the clerk of the superior court, acting in the place of the ordinary of Terrell County, was defended in
In his answer the sheriff set up that he was holding the applicant under the two sentences above referred to, and under two justice-court warrants, one charging him with larceny, and the other charging him with larceny of a certain heifer. On the trial of this case the applicant tendered in evidence the habeas-corpus proceedings instituted before the ordinary of Terrell County and the judgment rendered therein discharging him from custody under the sentences of Milton superior court, above referred to. Counsel for the respondent objected to the admission of this evidence, upon the ground that it was irrelevant and immaterial; and the judge sustained said objection and rejected said evidence. To this ruling the applicant excepted. After hearing the evidence the judge refused to discharge the applicant, and remanded him to the custody of the sheriff. To this judgment the applicant excepted.
1. The first question for decision in this case is, whether the judge erred in rejecting the habeas-corpus proceedings before the ordinary and clerk of the superior court of Terrell County, and the judgment rendered therein discharging the applicant from arrest under the sentences imposed upon him in the two cases in Milton superior court, upon the ground that they were irrelevant and immaterial. Any person restrained of his liberty, under any pretext whatever, may sue out a writ of habeas corpus, to inquire into the legality of such restraint. Penal Code, § 1291. The
In this case the ordinary of Terrell County had jurisdiction to grant the writ of habeas corpus; and when he became incapacitated from sickness to hear the case upon the return of the respondent to the writ so granted, the clerk of the superior court of Terrell
In the present proceeding it was insisted that the portions of the sentences were voidable alone, and could be amended by inserting in the blanks left therein the number of months which the defendant had to serve on the chain-gang. This raised the issue of law whether these portions of these sentences were void, which issue was passed upon by the habeas-corpus judge in the proceeding in Terrell County. It amounts, in effect, to an effort to attack, in a collateral proceeding, the judgment of the judge in that proceeding. This, in our opinion, can not be done. A judgment in a habeascorpus proceeding, being in this State subject to review, is final until reversed'; and where the legality of the same cause of imprisonment is twice drawn in question between the same parties by successive writs of habeas corpus before the same court or before different courts of competent original jurisdiction, the judgment on the former writ may be set up in bar of defense to a second habeascorpus proceeding, such defense setting up and asserting the legality of the restraint which had been passed on adversely to the respondent in the first proceeding. The matter will be deemed res adjudicata as to all points which' were necessarily involved in the general question of the legality or illegality of the arrest and detention. Perry v. McLendon, 62 Ga. 598. The principle of res judicata has been held applicable to proceedings in habeas corpus involving an inquiry into and a determination of the rights of conflicting claimants to the custody of a minor child. Pryor v. Pryor, 164 Ga. 7 (137 S. E. 567). Where a judge in a habeascorpus case awards custody of a minor child to the respondent, such judgment may be set up in bar to another habeas-corpus proceeding between the same parties for the custody of the child, based upon the same facts. Collard v. McCormick, 162 Ga. 117 (2) (132 S. E. 757). In the cases cited the rights of the applicants
The principle of the conclusiveness of judgments in habeas-corpus cases has been recognized and enforced in both classes of cases. An order or judgment discharging a person in habeas-corpus proceedings is conclusive in his favor that he is illegally held in custody, and is res judicata of all issues of law and fact necessarily involved in that result. A person discharged in habeas-corpus proceedings can not lawfully be again arrested, imprisoned, restrained, or kept in custody for the same cause, or under the same sentence. Mc-Conologue’s Case, 107 Mass. 154. So where a probate court discharges a person because no offense was alleged for which he could be prosecuted, its order not only restores him to his liberty, but terminates the pending proceeding against him. In re Crandall, 59 Kan. 671 (54 Pac. 686). The discharge of a party, under a writ of habeas corpus, from the process under which he is imprisoned, discharges him from further confinement under the process. Ex Parte Milburn, 9 Peters, 704, 709 (9 L. ed. 280). Where a person has been discharged by a commissioner on a writ of habeas
It is true that the respondents in the two proceedings were different persons, the respondent in the first writ being the sheriff of Terrell County, and the respondent in the second writ being the sheriff of Milton County. These persons were not parties in their private capacities, but in their official capacities, as officers of the State and as representatives of the State. The State and the people were represented by these two officers. Besides, such a proceeding has been analogized to a proceeding in rem. Simmons v. Georgia Iron & Coal Co., supra. While the judgment discharging the applicant from confinement under these sentences in the habeascorpus proceedings in Terrell County might be erroneous for the reason that these sentences could be so amended, under proper proceedings, as to fix his terms of service in the chain-gang, under the decisions of our courts (Merritt v. State, 122 Ga. 752, 50 S. E. 925; Tyler v. State, 125 Ga. 46, 53 S. E. 818; Pulliam v. Jenkins, 157 Ga. 18, 121 S. E. 679; Stansell v. State, 30 Ga. App. 658, 119 S. E. 419), we think that judgment, being reviewable, was conclusive upon the question of the legality or illegality of the sentences under which he was held; and that for this reason the trial judge erred in rejecting the record and the judgment in the habeas-corpus proceedings in Terrell County.
While we hold that the applicant should have been discharged from restraint under these sentences, he should not have been fully discharged from custody, for the reason that the sheriff set up that he held the applicant under certain justice-court warrants which had been issued by a justice of the peace in Milton County, charging the applicant with criminal offenses. He should have been remanded to the custody of the sheriff under these warrants, so that they could have been disposed of acctírding to law.
Judgment reversed in part and affirmed in pari.