Wiggins v. Tyson ( 1901 )

Simmons, C. J.

1. When this case was here before (112 Ga. 744), the judgment of the lower court was reversed with direction that “ if at another hearing it is made to appear that the remittitur has been received and made the judgment of the superior court of Putnam county, [the prisoner] be remanded to the custody of the warden of the penitentiary having him in charge.” It appearing from the present record that upon the other hearing it was shown to , the trial court that the remittitur from this court had been received by the clerk of the lower court and made the judgment of that court by a proper order of the judge, there was no error in dismissing the habeas corpus and remanding the prisoner.

2. Under the Penal Code, § 1075, the judge of the superior court has power in vacation to pass an order making the judgment of the Supreme Court, affirming a judgment in a criminal case, the judgment of the superior court.

3. If the judgment of the lower court'in a criminal case is affirmed by this court and the accused commences to serve his sentence before the remittitur from this court is received and filed by the clerk of the lower court, his term of service should be computed from the time the remittitur is filed in the lower court. Knox v. State, 113 Ga. 929.

Judgment affirmed.

All the Justices concurring.

Habeas corpus. Before Judge Roberts. Wilcox superior court. August 12, 1901.

J. W. Preston and Hall & Wimberly, for plaintiff. J. M. Terrell, attorney-general, and J. F. DeLacy, solicitor-general, for defendant.