Short v. Dowling , 138 Ga. 834 ( 1912 )

Atkinson, J.

E. L. Short instituted habeas corpus proceedings against J. L. Dowling, mayor, and J. A. Collier, marshal, of the town of Doe-run. On the trial it appeared that in December, 1911, Short was convicted in the mayor’s court for a violation of a municipal ordinance, and given an alternative sentence. An appeal was entered to the mayor and council. The defendant having neither paid the fine nor served out the sentence, the marshal, in August, 1912, arrested him. The following contentions were made: (a) That the criminal docket of the municipal court showed that the case against Short had been dismissed, and that he had been released from any sentence by the officers of the town, who had informed him that the case had been dismissed, and allowed ten months to elapse from the imposition of the sentence before attempting to enforce it, it being insisted that to enforce the sentence in the circumstances would be contrary to public policy. (&) That the period for which he was sentenced had expired, and the sentence thereby executed. Held: '

1. Relatively to the dismissal, the evidence was sufficient to authorize the trial court to find that an entry of dismissal appearing on the mayor’s docket related to dismissal of the appeal at the defendant’s request, rather than to dismissal of the case.

2. Under the ruling in tlie case of Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175), and eases cited, as applied to the evidence adduced on the trial, the court did not err in adjudging that the sentence had not been executed.

3. Nor upon any other theory advanced was the case of such character as to show error in remanding the prisoner to the custody of the officer.

Judgment affirmed.

All the Justices concur.