Gordon v. Johnson

126 Ga. 584 | Ga. | 1906

Lumpkin, J.

In this case the recorder, in shaping the proceedings, seems to have had in mind probation laws, or else the method which was formeriy practiced in England, under what was known as “the ticket of leave system,” when that country sent convicts to Australia, and granted some of them tickets of leave upon certain conditions. But, about 1840, the colonies declined to receive more of the convicts, and, after a trial of the plan at home, it was substantially abolished, or at least changed to the license sjrstem, dependent on conduct during imprisonment.

The facts are sufficiently stated in the headnotes. The effect of the sentence, taken as a whole, was that the accused should be released from imprisonment, upon the payment of $100. He paid that amount- and was rightfully released. The city recorder had no authority of law to add $400 to the fine, and provide that it should be indefinitely suspended during good behavior, but that the collection of it might be enforced by imprisonment, at the mere direction of such recorder. The charter of Cordele is quite liberal, but it confers no such authority as this. Indeed, it has been held that a judge of the superior court has no authority to suspend the execution of a sentence imposed in a criminal case, except as incidental to a review of the judgment. Neal v. State, 104 Ga. 509. The facts of this case illustrate clearly why such a proceeding can not be upheld. The defendant had paid the amount which entitled him, under the sentence, to be set free. An additional amount of $400 as a fine was imposed, not to be collected certainly, but to be suspended “during good behavior.” Who was to judge of this good behavior, and what should constitute it^an- only be surmised. Somewhat more than a month after this sentence the same defendant was again accused of keeping whisky on hand for illegal sale, which was the offense of which he had formerly been convicted. On the trial of that case the evidence did not authorize a conviction, and the recorder discharged the defendant; but apparently he was of the opinion that the evidence showed that the defendant’s behavior was not good, and he accordingly directed the marshal to enforce the sentence in the former case. In other words the court seems to have convicted him of bad behavior, which was not an offense with which he was charged, or for which he was or could have been tried. Being thus of the opinion that the defendant’s good behavior had ceased, the recorder withdrew an indefinite suspension of the right to collect the additional $400 mentioned in the original sentence. The defendant may or may not have been exercising “good behavior.” But there is no law authorizing such a proceeding, or the enforcement of the collection of the additional $400 by imprisonment.

Judgment reversed.

All the Justices concur.