173 Ga. 618 | Ga. | 1931
Edward O. Ellis filed his petition to the judge of the city court of Atlanta, for the writ of habeas corpus. The writ was issued, and the respondent, the warden of the Eulton County public works, who had Ellis in custody, filed an answer. At the conclusion of the evidence the judge remanded the prisoner to the custody of the warden. To this judgment Ellis excepted. He also assigned error on the admission of certain evidence, and on the continuance of the hearing from one day to another in order to allow the State time to present a motion to amend the minutes of the court, etc. Each exception will be considered in its order.
The evidence showed that Ellis was being held by the warden of Eulton County public works under a 12-months sentence imposed by Judge E. D. Thomas in the superior court of Eulton County on November 8, 1924. The sentence had been suspended for several years. It was based on an indictment found against
In Kneeland v. State, 63 Ga. 461 (2), this court held: “While parol evidence may be admissible to correct a mistake in entering .the names of grand jurors on the minutes of the court in which an indictment was found, yet, where the indictment was found in the superior court and transmitted to a city court for trial, parol evidence of such a mistake would not be admissible in the latter court under a plea in abatement. The proper course would be to examine the minutes of the superior court, and, if it appears therefrom that' the indictment has not been found by grand jurors whose names appear thereon, then to suspend the hearing of the case until the minutes of the superior court in which the indictment was found shall be corrected, if it can be lawfully done; and if-not, the indictment should be quashed by the court in which it was found.” There was no error in suspending the hearing until the minutes of the superior court should be corrected, if the evidence authorized it.
Error is also assigned, because, when the habeas-corpus case was resumed for hearing on May 15, the judge of the' city court admitted in evidence certified copies of the “amended minutes” of the superior court, and the order of the superior-court judge amending them, -dated May 14. These were admitted over the objection that Ellis had filed a bill of exceptions to the granting of these orders. However, it appears from exhibit G attached to the bill of exceptions that the exception was to the order of the judge of the superior court overruling the general and special demurrers to the petition of the solicitor-general to have the minutes amended. There is no exception, so far as the record shows, to the order amending the minutes. And the exception to the overruling of the demurrer could not operate to prevent the judge of the superior court from proceeding with the hearing on the petition to amend the minutes, and to amend them if the evidence authorized it. Mass. Bonding & Ins. Co. v. Realty Trust Co., 139 Ga. 180 (2) (77 S. E. 86); Alumbaugh v. State, 39 Ga. App. 559 (2) (147 S. E. 714). And see Tyler v. State, 125 Ga. 46 (53 S. E. 818), on the subject of the court amending its own minutes, where it was held: “Following the ruling in the case of Merritt v. State, 122
Error is assigned on the allowance in evidence of the certified copy of the orders of Judges Humphries and Thomas amending the minutes of the superior court, on the ground that the orders were not “nunc pro tunc” orders. This assignment is without merit. While the words “nunc pro tunc” were not used, it was stated in said order that “said correction shall be made as of November 8, 1924,” which is the equivalent of saying that it was made nunc pro tunc.
The judge of the city court did not err in the rulings complained of, or, under, the evidence, in remanding the prisoner to the custody of the warden of the public works of Fulton County.
Judgment affirmed.