Moore v. Lawrence ( 1941 )

It is suggested in the motion for rehearing that the decision affirming the judgment of the trial court was based upon a misunderstanding of the facts, in that this court "seemed to be under the impression that at the time the fine was tendered on February 24, 1941, this plaintiff in error had already entered upon her service in the State prison." It is then stated that as a matter of fact the plaintiff in error, the applicant in the court below, had not begun service of the sentence at the time the conditional pardon was granted on December 26, 1940, or at the time the fine was tendered on February 24, 1941, but was at liberty on bond after conviction, and tendered the fine pending a proceeding to forfeit the bond and before the date of the hearing "on said bond forfeiture." The record does show the facts as thus recited in the motion for rehearing, but it also discloses that the bond was given in connection with an application for certiorari to review the verdict and judgment of conviction in the criminal court of Fulton County, and that on December 30, 1940, just four days after the conditional pardon was granted, the applicant by her attorney appeared in the superior court and dismissed her petition for certiorari. We did not overlook these facts in considering the case, but did fail by inadvertence to mention them either in the statement or in the opinion. We did not consider that the result should be changed thereby, but in the circumstances counsel were justified in inferring that our decision was based upon a misapprehension of the facts.

During the time that the applicant was at liberty on bond, she was not entirely free but was merely transferred from the custody of the law to the legal though friendly custody of her surety, whose dominion was "a continuance of the original imprisonment."Coleman v. State, 121 Ga. 594, 597 (49 S.E. 716). When the petition for certiorari was voluntarily dismissed, the petitioner was no longer entitled to her freedom under the bond, but the time was then at hand for the beginning of her servitude. From that moment, the applicant's right and status in reference to the conditional pardon were as indicated in our decision, although she may not have been actually within the four walls of the prison. While this view would serve to lessen by four days her delay in tendering the fine, if the reasonable time should be computed from December 30, 1940, the date on which the petition for certiorari was dismissed, instead of December 26, 1940, when the conditional pardon was granted, yet, even on this theory, it must be held as a matter of law that the delay was unreasonable and that the pardon had lapsed by its own terms before the fine was tendered. See, in this connection, Wiggins v. Tyson,114 Ga. 64 (3) (39 S.E. 865); Franco v. Lowry, 164 Ga. 419 (138 S.E. 897); Roberts v. State, 32 Ga. App. 339, 341 (123 S.E. 151).

Other matters referred to in the motion are sufficiently covered by the original decision.

Rehearing denied. All the Justices concur.