Williams v. State, 162 Ga. 327

Williams v. State

162 Ga. 327 | Ga. | 1926

Lead Opinion

Russell, C. J.

(After stating the foregoing facts.)

The issues raised in this case divide themselves into two branches: (1) questions presented as matters of law by the demurrer, and (2) matters both of law and fact by which the judgment of the superior court upon the certiorari is sought to be attacked. If the petition for certiorari is the proper means provided by law for reviewing and correcting the order or judgment of the city court of Richmond County in revoking the parole, then the judgment of the superior court of Richmond County in overruling and dismissing the certiorari is such a final judgment as is subject to review in this court; and since the demurrer questions the constitutionality of the act of 1913 (Georgia Laws 1913, p. 112) providing for probation of offenders in certain cases, jurisdiction of the constitutional questions presented inheres in this court, and the case was properly transferred here by the Court of Appeals.

It was held in Antonopoulas v. State, 151 Ga. 466 (107 S. E. 156), that “the order of the court revoking the probationer’s ‘parole’ is not such a final judgment as is subject to review on a bill of exceptions.” But the ruling in that case is not' in point in the case now before us, because there has been in the case at bar a final judgment by the superior court upon the petition for certiorari, and art 6, sec. 4, par. 5, of the constitution guarantees the right of certiorari to the judgments of all inferior judicatories in this State, thus including the judgment rendered in this case by the city court of Richmond County. Furthermore, in the Antonopoulas case no attack was made upon the constitutionality of the act of 1913, and consequently necessarily the constitutionality of that act was assumed. Since the demurrer in this case properly questions the constitutionality of the act of 1913, we shall first consider whether the act is in reality unconstitutional. In the de*333murrer it is asserted that the act is unconstitutional and void, “in that the same is in conflict with art. 5, par. 12, of the constitution of the State of Georgia, embodied in section 6481 of the Code of Georgia, in that the same attempts to delegate to the courts of this State the pardoning or suspending of a sentence of a person convicted of crime, when such power under said constitutional provision is lodged in the Governor of the State.”. In our opinion this ground of the demurrer is without merit. While the Governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to impose any penalty which may be from time to time prescribed by law and in such manner as may be defined can not be questioned. The right of the court to mold its sentence in cases where it is the duty of the court and'not of the, jury to fix its sentence is not limited or circumscribed otherwise than by. the rule that the court can not exceed the penalty prescribed by statute. The provisions of the act of 1913 can not in any event invade the province of the executive’s right to pardon or commute sentences, because the power to pardon, alter, or commute a sentence with which the Governor is vested finds no reason for its exercise until the courts have completed the judicial investigation and finally disposed of a defendant’s ease.

It is insisted, however, that the act of 1913 is in violation of the fourteenth amendment to the constitution of the United States, which prohibits the deprivation of any person of his life, liberty, or property, except by due process of law, in that the act attempts to cause such person to serve an antecedent sentence for the commission of an alleged subsequent crime, without any provision for any legal proceeding or trial to determine his guilt or innocence as to the second, offense; and that it is also in violation of the fourteenth amendment, which forbids that any person be denied the equal protection of the laws, because to force the defendant to servé under the chain-gang sentence as a punishment for a second offense of which he is presumed to be innocent would not give him equal protection of the law, in that another defendant similarly charged would be entitled to a trial. These grounds of demurrer as presented are without merit.

It is further insisted in the demurrer that the act of 1913, supra, is in violation of art. 6, sec. 18, par. 1, of the constitution *334of Georgia (Civil Code, § 6545), which entitles the accused offender to a trial by jury unless waived.

The plaintiff in error is not in position to assert the invalidity of the portion of the sentence relating to his parole and the right to serve the twelve-months sentence outside the confines of the chain-gang or other place of imprisonment provided by the proper authorities, for the reason that if it is indeed true that the sentence did not conform to the requirements of the act of 1913, with reference to the appointment of a probation officer and the placing of the defendant in charge of such probation officer as contemplated by the act, it necessarily would result that only that portion of the sentence would fall, and the defendant would be compelled to serve the sentence of twelve months in. the chain-gang as originally imposed.' The plaintiff-in error, having elected to comply with a portion of the sentence with the expectation of deriving a benefit therefrom in the amelioration of his condition, will not now be heard to assert the invalidity of that portion of the sentence upon which alone depended his escape from the service of twelve months in a chain-gang upon the public works. It is for this reason not necessary at this time to decide the question presented as to the failure of the judge of the city court to place the plaintiff in error in charge of a probation officer; for the plaintiff in error shows no error, in that actual injury must concur with technical error to constitute such an error as will warrant reversal; and if this court were to hold the parole and the right of the plaintiff in error to serve the sentence imposed outside of the chain-gang to be void, the portion of the sentence imposing a fine of $200 and twelve months at labor upon the defendant, being one which the judge was fully authorized to impose, would be unaffected, and would require the defendant to serve the full term for which he had been sentenced.

Section 4 of the act of 1913, supra, provides that “in case of failure to meet any of these requirements . . the court may issue a warrant directing that he [the probationer] be arrested and brought before it. When such person is brought before the court, 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.” As already pointed out, the act of 1913 does not violate the due-process clause of the 14th *335amendment to the Federal constitution, because the probationer is not deprived of his liberty without a hearing, and not until the court has made a due examination into the facts and ascertained from evidence sufficient to satisfy his mind that the probationer has violated his parole can the court revoke its leave to the probationer to serve his sentence outside the confines of the chain-gang. In the case at bar the judge heard evidence. Two witnesses testified to a transaction which occurred at the defendant’s place of business outside of the City of Augusta, in which it appeared that Williams had sold a bottle of whisky to one Coursey for $1. It was necessary, however, to be shown that this sale was subsequent to the sentence of the court, and no witness testified as to when or where the sale of whisky by Williams took place. Even if it be assumed that, because it is stated in the evidence that Williams’s store is outside the corporate limits of Augusta, this sale took place in Richmond County, Georgia (though it possibly might be just outside the corporate limits of Augusta just across the river in South Carolina), there was no evidence at the hearing to indicate whether the sale was before the commission of the offense for which the plaintiff in error was sentenced or subsequent thereto. For this reason the evidence before the judge failed to establish a violation of the parole. By the terms of the parole leniency was granted as a reward for observance of the law in the future, subject to be revoked if there was a future violation of the prohibition law. There is nothing included in the sentence which would subject the parole to revocation should the court later discover that the accused had violated the law at times prior to the disposition of his case as then before the court. If the parole had been granted upon these terms, a different question would be before us from any presented in this record. So we think that, in the absence of evidence to show when the sale alleged to have been made by the probationer was made, the judge of the city court upon the hearing was not authorized to find that it was subsequent to the imposition of the sentence, and that he should not have revoked the parole without evidence upon this point; and that the judge of the superior court erred, because the testimony at the hearing before the judge of the city court of Richmond County did not disclose when the alleged sale in viola*336tion of the probationer’s parole took place, in not sustaining tbe certiorari .and remanding the case for another hearing.

Judgment reversed.

All the Justices concur, except

Dissenting Opinion

Beck, P. J.,

dissenting. I concur in all the rulings made in the decision, except the ruling to the effect that the case of Antonopoulas v. State, 151 Ga. 466, is not in point upon the question as to whether or not the judgment excepted to here is such a final judgment as is subject to review on direct bill of exceptions. I am of the opinion that the Anionopoulas ease is in point upon that question, and the holding there is contrary to the holding of the majority in the present case.