156 Ga. 706 | Ga. | 1923
Concurrence Opinion
.eoneurripg specially. I concur in • the judgment rendered by this court, and in so far as the principles announced are applicable to the facts of the case I also concur therein. The application for habeas corpus is for the release of a convict who had been sentenced in two misdemeanor cases. One of the headnotes quotes approvingly from the case of Fortson v. Elbert County, 117 Ga. 149 (43 S. E. 492). That case holds: “As to felonies, by the Penal Code, § 1041 [Code of 1910, § 1067],-and as to misdemeanors, under general principles of criminal law, if a defendant is found guilty of more than one offense, and the imprisonment under one sentence is to commence on the expiration of the other, the sentence must so state; else the two punishments will be executed concurrently, and the defendant be entitled to his discharge on the expiration of the longest term.” In my opinion that head- • note is broader than the facts of the case authorized the decision to go. Although the present case is distinguished, the defect in the quoted headnote should be noted. That case, like this, was a peti
Lead Opinion
1. It lias been held: “If a defendant be found guilty of more than one offense, and the imprisonment under one sentence is to commence at the expiration of the other, the sentences must so state; else the second punishment will be executed concurrently, and the defendant will be discharged on the expiration of. the longer term. Fortson v. Elbert County, 117 Ga. 149 (43 S. E. 492).” Shamblin v. Penn, 148 Ga. 592 (97 S. E. 520). See also Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (8) (43 S. E. 780, 61 L. R. A. 739) ; 16 C. J. 1306, § 3082; 8 R. C. L. 242, § 242. It has also been held that the principle stated above “ has no application in a ease where the different sentences were imposed by different courts.” Hightower v. Hollis, 121 Ga. 159 (48 S. E. 969). See also 16 C. J. 1306, § 3082.
2. The case under consideration involves two sentences imposed on the same person by different courts for different offenses. As the defendant was engaged in serving the first of the sentences at the time the second was imposed upon him, the recital in the second that it should follow the first, while not essential, was not improper; and the admission in evidence of that part of the language in the second sentence stating that it was to follow the first was not erroneous.
3. As the two sentences imposed by two different courts were to be served consecutively, the second sentence, after all proper allowances of reduction of time for good behavior, as provided in the Penal Code (1910), § 1179, had not expired at the hearing of the application for habeas corpus; and the judge did not err in remanding the petitioner to the custody of the officer.
Judgment affirmed.