164 Ga. 242 | Ga. | 1927
Lead Opinion
Fred Teasley brought a petition for habeas corpus against B. F. Nelson as warden of Whitfield County chain-gang, on October 30, 1926, praying that the warden be required to produce the body of Fred Teasley before Judge M. C. Tarver, together with the cause of the plaintiff’s detention, etc. On November 1, 1926, the respondent produced the body of the plaintiff, and filed his answer. On the hearing of the case the plaintiff introduced certain orders of the court .sentencing the plaintiff in three certain cases against him in Whitfield superior court; one for carrying a pistol in two counts, wherein the court ordered that Fred Teasley “do work on the State farm for and during the full term of six months, and on the chain-gang for and during the full term of six-months on the first count of said indictment; and that on the second count he serve on the chain-gang for and during the full term of twelve months, and then be discharged. Said sentence to begin and be counted from the date of the reception of the defendant on State farm under this order and judgment. Sentence pronounced and signed in open court this April 12, 1924. M. C. Tarver, J. S. C. C. C.” At the October 'term, 1924, of Whitfield superior court, in the ease of The State v. Fred Teasley, the jury returned the following verdict: “We, the jury, find the defendant guilty of assault with intent to murder, and fix his sentence at not less than two or more than two years and one day. This 8 day of October, 1924. J. L. Hinton, foreman.” This verdict was entered upon the minutes of the court. On January 8, 1925, in term, Judge Tarver entered the following judgment in
The plaintifi: objected to the introduction of this judgment, upon the ground that the order establishing it as a correct copy of the original sentence was granted without any evidence having been
We are'of the opinion that the court below erred in denying the prayer of plaintiff’s petition, and in remanding him to the warden of Whitfield County chain-gang. It appears from the sentence of the court, pronounced and signed on January 8, 1925, that the plaintiff in error was sentenced, in the case in which he pleaded guilty to possessing whisky, for the term of twelve months, “to begin at the expiration of the two sentences now being served from this court for carrying pistol and shooting wife, and then be discharged.” It thus appears from the above-stated judgment of the court, which was signed and entered upon the minutes of the court, that on January 8, 1925, the plaintiff in error was then serving (concurrently) a sentence for carrying a pistol, and for shooting his wife. See Penal Code (1910), § 1067. And this judgment, it will be borne in mind, was passed within a few months after the sentences in the other eases, whereas the order of the court establishing the lost judgment instanter, without motion, or notice to the plaintiff in error, as far as the record shows, and without any evidence other than the “memory” of the judge himself, occurred more than two years after the date of the judgment which was lost. It will thus be seen that if the plaintiff in error was, on January 8, 1925, serving a sentence for shooting his wife, which was an assault with intent to murder, as found by the jury, and the sentence of the court, imposed for carrying a pistol, he has served from that time, on the felony sentence, more than two years to the time of bringing this petition for habeas corpus. And even if the trial judge could establish a copy of the lost original judg-« ment, pronounced more than two years previously, from memory, yet we are of the opinion that, the statement of fact contained in the judgment and sentence of the court pronounced January 8, 1925, should be taken in preference to the “memory” of the judge in 1926, two years after he passed sentence in the felony case; and therefore, it appearing that on January 8, 1925, the plaintiff in error was serving this very sentence, under which he is now being held in custody, and having been relieved from the other sentences by the Governor’s executive order on October 19, 1926, . he should be released from custody. It is undoubtedly true that the general rule in this State is that; upon the loss of any original
We do not mean to hold that an office paper can not be established “instanter on motion,” nor that notice is indispensably necessary to be given on a motion to the court to establish copies of office papers, which are lost or destroyed. See, in this connection, Saunders v. Smith, 3 Ga. 121 (7); Eagle & Phenix Mfg. Co. v. Bradford, supra; Bell v. Patterson, 146 Ga. 233 (91 S. E. 71); Pulliam v. Jenkins, 157 Ga. 18 (121 S. E. 679). Neither do we mean to hold that where there is an allegation and proof showing that the record as restored was not the true one, that it could be established “instanter on motion.” See, in this connection, Fuller v. Little, 69 Ill. 229 (8). We fully recognize the rule that a court has the power to replace its own records when lost or destroyed. See Red River etc. v. Sture, 32 Minn. 95 (20 N. W. 229). A court has the inherent power to replace its records when lost or destroyed. Haney v. Haney, 163 Minn. 114 (203 N. W. 614). Original papers, such as the declaration, process, verdict, and judgment in a suit, do not cease to be records because they have not been recorded in the record book of writs in the superior court. Bridges v. Thomas, 50 Ga. 378 (3).
The cases in which it has , been held that it" was' not necessary to give notice to the parties at interest were' where the' copy of the original sought to‘. be established "was an' exemplification of the lost original. In Saunders v. Smith, 3 Ga. 121, 128, it was said: “It, however, appears from the Order itself that it was an exemplification of the original lost record that the court ordered to be established, which offered the most satisfactory evidence of its authenticity.” It was also said that “it is the business, as well as
No presumption will be indulged in favor of sustaining a sentence as cumulative. Accordingly, the rule is that where the defendant is already in execution of a former sentence, and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule. 8 R. C. L. 242, § 242. So from the foregoing authorities and the evidence in this case we reach the conclusion, that, although a court may establish copies of lost papers on motion, and assuming, without deciding, that the copy of the written sentence of October, 1924, which had not been recorded, could be established by the court'from his “memory” of what that lost written sentence contained, yet we are of the opinion, as already stated, that the sentence of January 8, 1925, which was recorded, and both of which sentences were rendered by the same judge, that the latter, with the statements contained therein, should outweigh the “memory” of the same judge, as to what occurred more than two years previously.
Judgment reversed.
Dissenting Opinion
dissenting. I concede the correctness of the general statement laid down in 8 E. 0. L. 242, given in the opinion of the majoritjq that “no presumption will be indulged in favor of sustaining the sentence as cumulative,” etc. It is unnecessary, it seems to me, to discuss the question in this dissent, because it does not appear that anything is left to presumption. The case has been decided by the majority solely on the basis of whether, as a matter of law, the recollection of the trial judge is better at one time than