175 Ga. 189 | Ga. | 1932
Section 6139 of the Civil Code of 1910 (so far as material to the question propounded by the Court of Appeals) declares: “Any party in any civil cause, and the defendant in any criminal proceeding in the superior courts of this State, may except to any sentence, judgment, or decision, or decree of such court, or of the judge thereof in any matter heard at chambers.” By the question propounded by the Court of Appeals we are asked to define the words “any criminal proceeding,” inasmuch as the Code only provides that “the defendant in any criminal proceeding . . may except.”
In State v. Jones, 7 Ga. 422, the ruling was: “A writ of error does not lie to this court, in a criminal case, at the instance of the State.” This statement has been repeated times without number. It is not necessary, for the purpose of the question, to decide at this time whether this general rule, like all other general rules, is subject to exception. From a careful reading of the opinion of the court delivered by Judge Nisbet in the Jones case it is plain that the statement in the h'eadnote quoted is based upon consideration of the fundamental rule of the common law embodied in the 5th amendment to the constitution of the United States, which declares;
In Antonopoulas v. State, 151 Ga. 466 (107 S. E. 156), a majority of this court held that the action of the lower court in revoking a sentence so molded as to allow the prisoner to serve the sentence outside the confines of the chain-gang, jail, or other place of detention, provided by the act of 1913 (Ga. L. 1913, p. 112), is not such a final judgment as is subject to review on a bill of exceptions. In that case Hill and Gilbert, JJ., dissented. It was therefore only the judgment of a majority of this court. In Williams v. State, 162 Ga. 327, 333 (133 S. E. 843), it was pointed out that the Antonopoulas case was distinguishable. Mr. Presiding Justice Beck
In Wimbish v. Reece, 170 Ga. 64 (152 S. E. 97), this court, construing the language from the act of 1913 (Ga. L. 1913, p. 112) that “where it appears to the satisfaction of the court that the circumstances of the case and the public good does not require the defendant’s incarceration, said court may mold its sentence so as to allow the defendant to serve same outside the confines of the chain-gang, jail,” etc., held that a sentence of probation is as much a sentence of court as is a judgment requiring a convict to serve the period of time fixed by sentence in jail or on the chain-gang. We also held: “One serving a sentence on probation in accordance with the terms of the act of 1913, supra, is fulfilling the sentence as effectually as if such time had been, spent in jail or employed in working on the chain-gang but for the molding of the sentence by the court £so as to allow the defendant to serve the same outside the confines of the chain-gang, jail, or other place of detention.’ ” In pursuance of these rulings, we proceeded to pass upon the other questions raised in the record, and to affirm the judgment of the lower court in dis
. An analysis of the decisions to which the Court of Appeals has referred us develops the following facts: That the Antonopoulas case, being the opinion of only four Justices, is not binding authority. For this reason there is no necessity that it be formally reviewed and overruled. It is superseded by the rulings in Williams v. State and Rhodes v. State, supra, in so far as it was therein held that "the order of court revoking a probationer’s parole is not such a final judgment as is subject to review by bill of exceptions,” and it will not be followed. Other cases in which this court and the Court of Appeals have dealt with the terms of the act of 1913 (Ga. L. 1913, p. 112) as criminal proceedings, or at least as one of the proceedings which may occur in criminal cases — and in criminal cases only, are Roberts v. Lowry, 160 Ga. 494 (128 S. E. 746); Smith v. Veach, 165 Ga. 190 (140 S. E. 356); Olsen v. State, 21 Ga. App. 795 (95 S. E. 269). It is very plain that the General Assembly, in the passage of the act providing for probation of offenders in certain cases (Acts 1913, p. 112), intended the law to apply only to criminal proceedings. The new law only gave the judges a power, which they theretofore had not possessed, for so molding their sentences as to permit in certain cases the defendants to serve the sentence outside the confines of the jail, chain-gang, or other place of detention, under the supervision of the court. Necessarily the exercise of this new power appertained to the sentence, which is an essential part of a criminal trial in which there is a conviction or a plea of guilty.