Pulliam v. Jenkins , 157 Ga. 18 ( 1923 )

Atkinson, J.

At the term of the superior court at which a verdict was rendered in a criminal case, finding the defendant guilty, the judge pronounced oral sentence upon the defendant in open court, directing that he serve on the public works of the county for the space of twelve months. At the same term a paper was signed by the judge and duly entered on the minutes of the court, which, after stating the substance of the verdict, directed that the defendant “pay a fine of............ dollars, to include all costs,” and that in default of such payment the defendant “be put to work and labor on the public works ” of the county, or otherwise as the proper authorities may direct, for the space of twelve months to be computed from the time of his delivery, with the- privilege to the defendant at any time after commencement of work to pay the fine and costs and be discharged. After a judgment refusing the defendant a new trial was affirmed by the Court of Appeals and the remittitur was made the judgment of the trial court, the defendant paid $30 (which was the amount of costs in the case) to the clerk of the latter court, and received from him a receipt therefor “in full payment of all costs, fines, and charges in” the case. Afterwards and during the second regular term after oral pronouncement of sentence and the signing by the judge of the aforesaid paper and its entry upon the minutes of the court, the solicitor-general brought a direct proceeding against the defendant, by petition to the judge, to correct the paper signed by the judge as the sentence of the court, so that it should conform to the oral sentence, by striking therefrom the language relating to fine and discharge of the prisoner on payment of fine, but leaving it to stand as to service on the public works of the county. The grounds alleged for correcting the sentence were clerical error upon the part of the solicitor-general in preparing the sentence, and inadvertence of the judge in signing the paper without discovering the error. The petition was sanctioned, and the judge issued a rule nisi calling upoii the defendant to show cause at the court-house on the following day why the paper should not be corrected as prayed. The defendant filed a demurrer and answer. A hearing was had in open court at the appointed time and place, and evidence was introduced. At the conclusion of the hearing a judgment was rendered correcting the sentence as prayed. Eeld:

No. 3973. November 14, 1923. Rehearing denied March 1, 1924. Harwell, Fairman & Barrett, for plaintiff. Claude C. Smith, solicitor-general, for defendant.

1. The judge had power at the subsequent term, in the direct proceeding against the defendant after due notice and a hearing, to correct the paper inadvertently signed as a sentence and entered upon the minutes of the court, so that it should conform to the actual sentence orally pronounced. Civil Code (1910), §§ 4644 (6), 5703; Merritt v. State, 122 Ga. 752 (50 S. E. 926); Tyler v. State, 125 Ga. 46 (53 S. E. 818).

(а) Payment of cost by the defendant did not deprive the judge of power to subsequently correct the sentence.

(б) The case differs from Porter v. Garmony, 148 Ga. 261 (96 S. E. 426), and Shaw v. Benton, 148 Ga. 589 (97 S. E. 520), holding that a trial judge, after adjournment of the term at which the sentence was imposed by him, has no authority to change or modify the original sentence. The rulings there made had reference to modification of sentences formally entered as they were intended to be; not to correction of an erroneously written sentence inadvertently signed by the judge and placed on the minutes of the court.

2. On the trial of a habeas-eorpus case instituted by a prisoner held by a sheriff after payment of court costs, under a sentence of court corrected in the manner and under circumstances as indicated in the preceding note, it was not error to refuse to strike so much of the answer of the sheriff as set up the corrected sentence of the court; or to admit in evidence the record of the proceedings to correct the sentence, over objection, stated in various forms, that the judgment was void because the judge was without authority or jurisdiction to correct the sentence at the time and in the circumstances of the case.

3. The judgment refusing to discharge the prisoner and remanding him to the custody of the sheriff was in accordance with the law and authorized by the evidence.

Judgment affirmed.

All the Justices concur, except Russell, O. J., dissenting.