Roberts v. Lowry, 160 Ga. 494

Roberts v. Lowry

160 Ga. 494 | Ga. | 1925

Concurrence Opinion

Russell, C. J.,

concurring specially. Under the terms of the act of 1913 (Acts 19.13, pp. 112, 114), as now embodied in sections 1081 (a), (b), (c), (d), of the Code of 1910, it was never contemplated that one convicted of a misdemeanor could be placed upon probation to serve sentence “outside the confines of the chain-*497gang, jail, or other place of detention, under the supervision of the court,” at any place without the jurisdiction of the State of Georgia, nor can it be assumed that the probation officers which the court was authorized to'appoint could exercise extraterritorial jurisdiction. Inasmuch as our laws have no extraterritorial force, it is plain that the provisions of § 1081 (c), conferring upon probation officers “all the powers of police officers,” would be of no effect in the State of Alabama. From the record in this case as it appears to me, there was no legal probationary discharge from service of the original sentence. There was rather an attempted banishment to Alabama. However, since it appears that the sentence, for the reasons above stated, was unaffected by the attempt to extend the provisions of the law into the State of Alabama, and it appearing that the defendant has not served the sentence as originally imposed, it was not error to refuse to'discharge the petitioner upon the application for habeas corpus.

Lead Opinion

Hines, J.

1. Where a person placed on probation violates any of the rules prescribed by the court for his conduct, the probation officer may, at any time prior to the final disposition of the probationer’s ease, while in his custody, without warrant, bring him before the court, or the court may issue a warrant directing that he be arrested and brought before it; and the court, after due examination, may revoke its leave to the probationer to serve his sentence outside the confines of the chain-gang, jail, or other place of detention. Acts 1913, pp. 112, 114; Park’s Penal Code, § 1081(d); Olson v. State, 21 Ga. App. 795 (95 S.E. 269).

2. The due examination thus provided by the probation law requires that the probationer be given notice and an opportunity to be heard upon the question whether his parole shall be revoked or not; and an order . revoking his parole in his absence, without notice and an opportunity to be heard, is null and void.

3. But it appears, under the most favorable view of her case, that the petitioner had not served the original sentence imposed upon her by the court, and that at the time of the institution of this proceeding for habeas corpus the complaint of the probation officer that she had violated the rules prescribed by the court for her conduct while under probation was still pending; and for this reason she was not entitled to a discharge under the writ of habeas corpus at the time it was applied for. Shamblin v. Penn, 148 Ga. 592 (97 S. E. 520).

4. This renders it unnecessary to pass upon the various questions discussed by counsel in their briefs; but all such questions can be threshed out before the court on the hearing of the complaint of the probation officer to have the parole of the applicant yevoked.

Judgment affirmed.

All the Justices concur, except Gilbertj J., absent for providential cause. Hewitt W. Chambers and Chambers & Diclcey, for'plaintiff. Roy Dorsey, solicitor, for defendant, t