177 Ga. 238 | Ga. | 1933
C. O. Martin filed a petition addressed to Hon. John B. Hutcheson, Judge of the Superior Court of DeKalb County, alleging in substance that the petitioner was illegally restrained of his liberty, being confined in the common jail of the county; that he was restrained by J. B. Hall, sheriff and jailer of said county; that the cause or pretense of such restraint by the said Hall was “under a commitment by P. L. Harrison, said to be the recorder of the Town of North Atlanta, but no copy of any charges were presented to your petitioner at the time of the arrest or at any subsequent time. It is not definitely known to the petitioner upon what charge he ‘i's being detained.” The petitioner further alleges that he offered to make bail, which had been refused by P. L. Harrison and J. B. Hall. The petition prays for the writ of habeas corpus directed to the said sheriff, and that until a hearing petitioner be allowed to make bond. The writ was issued, and provision made for a hearing. The bill of exceptions recites that at said hearing the respondent moved to quash and dismiss the writ of habeas corpus, on the ground that the petitioner was in the custody of the sheriff under a charge of contempt, and on the further ground that the petition did not set out the commitment or process under which
Evidence was then introduced. The petitioner testified that he was in the recorder’s court of North Atlanta on April 3, 1933; that there was a friend of his “under arrest there; had him a girl.” He also testified that he had not “been presented with any papers giving” him “any idea of what kind of offense” he was charged with; that he had received no notice. J. E. Hall, sheriff, testified that he was also jailer of the county and had petitioner in his custody; that he was “held on a contempt charge;” that he did not remem
It is clear from the facts stated above that the judgment of the court was founded solely on the fact that the commitment called in the record “ticket” or “charge,” and which was signed “Harrison,” did not also designate him as “ Recorder of North Atlanta.” In other words the court held that the petitioner was committed by an individual, and not by the presiding officer of the recorder’s court of the municipality of North Atlanta. The petition, properly construed, alleges that he was committed by the recorder of North Atlanta. An evasive allegation must be construed most strongly against the pleader. The evidence establishes beyond question that he was committed by Harrison in his official capacity, and that he was committed for contempt in the immediate presence of the court
There is an additional reason why the judgment was erroneous. Penal Code (1910), § 1305, is as follows: “No person shall be discharged upon the hearing of a writ of habeas corpus in the following cases, to wit: . . (5) Where the party is in custody for a contempt of court, and the court has not exceeded its jurisdiction in the length of the imprisonment imposed.” There is a clear distinction between a case where one has been imprisoned for a direct contempt of the court and other cases where the contempt is not of the court itself nor in its presence. The sections of the Code and the decisions of the courts of this State cited by the defendant in error apply to the latter class of cases. For instance, defendant in error cites Smith v. McLendon, 59 Ga. 523. That was a case where an attorney had been imprisoned after being attached for failure to pay over to a client money which he had collected. Also State v. Bandy, 2 Ga. Dec. 40. That was a case where one was
Judgment reversed.