112 Ga. 744 | Ga. | 1901
Martha Wiggins petitioned the judge of the superior court for the writ of habeas corpus, alleging that P. H. Wiggins, her son, was wrongfully and unlawfully detained in one of the divisions of the Georgia penitentiary, located in Wilcox'county. The writ was issued and a hearing had. It appears from the answer ■of the warden having charge of the prisoner, as a justification of the detention, that Wiggins, at the September term, 1899, of the superior court of Putnam comity, was indicted and tried for the offense of murder, that he was convicted of voluntary manslaughter, and sentenced to imprisonment for a term of fifteen years in the Georgia penitentiary. The answer further sets up that Wiggins, .after conviction and sentence, made a motion for a new trial, which was overruled; that he excepted and brought his case to this court, which affirmed the judgment of the court below; and that after such affirmance, and before the remittitur which transmitted the judgment of this court was received by the clerk of the superior court of Putnam county, Wiggins voluntarily surrendered himself to the sheriff to be taken to the penitentiary in compliance with the sentence passed upon him. It is made by the evidence to appear that, .at the time of suing out his bill of exceptions, Wiggins entered into a bond with proper sureties, in terms of the statute, and superseded the execution of the sentence passed upon him. On the hearing the sheriff testified that he received a telegram from the chairman ■of the Prison Commission, stating that, if Wiggins desired to commence his time, he, the sheriff, might take him to the State farm; that after receiving the telegram he had an interview with Wiggins and two of the sureties on his bond; that he showed Wiggins and
The only ground urged in this court for a reversal of the judgment is, that, having superseded the execution of the sentence imposed upon him and sued out a writ 'of error to the Supreme Court, Wiggins was as a matter of law placed in the custody of the sureties on his supersedeas bond, where he was entitled to remain until the Supreme Court had decided his case and returned official notification of its action to Putnam superior court, and the judg
We do not altogether agree with counsel for plaintiff in error as to the effect of a supersedeas. When Wiggins made a motion for a new trial, and excepted in the manner prescribed by law to the judgment overruling it, and superseded the judgment or sentence in his case by the' execution of the bond provided by the Penal Code in such cases, the supersedeas did not have the effect of in any way impairing the judgment' or sentence or rendering the same illegal, but its only effect was to postpone its operation. When the judgment overruling the motion for a new trial was affirmed by this court, the legality of his trial and sentence was finally adjudicated, and all questions which were or could have been made, touching the legality and correctness of his conviction, were determined against him. The method of conveying to the superior court in which he was convicted the information that this court had affirmed its judgment was by a remittitur, the transmission of which is regulated by statute and the rules of tins court. It is true that until this writ is received the superior court can take no.
One may even waive Ms right to a trial, and under Ms plea of guilty be imprisoned. It is true that such waiver must be an express one, but when made, the waiver is of a constitutional right. Mr. Bishop, in Ms work on Criminal Law, § 995, declares that there are few exceptions to the rule that a party in a cause may waive any right which the law has given him, even a constitutional one. In the case of People v. Robinson, 46 Cal. 94, it was expressly ruled that the defendant in a criminal case may waive the time wMch the Penal Code allows after conviction before sentence can be pronounced, and may consent that judgment be pronounced immediately. It appeared in the report of that case that the law of California prescribed that no sentence should be pronounced within a given time after conviction. In the case of Sarah v. State, 28 Ga. 576, it was-ruled that as a prisoner might waive even a trial itself,' and be capitally punished, he might waive every minor right or privilege. It is declared in section five of our Penal Code that “a person may waive or renounce what the law has established in Ms favor, when he does not thereby injure others or affect the public interest.” So much for the binding effect of a waiver. If the evidence of the sheriff is true, Wiggins did waive the reception of the remittitur. If he did, we rule that it was binding upon him and he was legally in the penitentiary. There is no contest as to the manner in which the waiver was made. It is denied that any was made, but if made, according to witnesses who assert that it was, it was an express waiver, not one by implication. We have said thus
Judgment reversed, with direction.