Shaw v. Benton , 148 Ga. 589 ( 1918 )

Fish, C. J.

B. H. Shaw was convicted in the city court of Savannah, on November 15, 1917, for violation of the prohibition laws of the State, and sentenced to pay a fine of $1000 and costs, or, in lieu thereof, to labor upon the chain-gang of Chatham county for six months. He moved for a new trial, which was denied on December 22, 1917. Thereupon he sued out a writ of error, and the Court of Appeals affirmed the judgment. Before the remittitur from that court was forwarded, the judge of the city court of Savannah, on April 5, 1918, and after the adjournment of the term at which the trial was had and the sentence imposed, passed an order so amending the sentence that it should be $700 fine and-costs, or, in lieu thereof, six months upon the chain-gang. On April 15, 1918, the remittitur from the Court of Appeals was made the judgment of the city court, and the trial judge at the same time amended the sentence by rescinding the order of April 5, and restoring the original sentence imposing a fine of $1000 and costs, or, in lieu thereof, six months on the chain-gang. Shaw thereafter tendered to the clerk of the city court, and to the solicitor-general of the Eastern circuit, who prosecuted the case, the sum of $700 and costs in payment of the fine imposed in the amending order of April 5. The tender was refused. Shaw, being in the custody of the deputy warden and incarcerated as a prisoner in the convict farm of Chatham county, sued out a writ of habeas corpus against the warden to obtain a discharge. Upon the hearing the judge of the superior court refused to discharge Shaw, and remanded him to the custody of the warden. Held:

No. 945. November 18, 1918.

Habeas corpus. Before Judge Meldrim. Chatham superior court. April 16, 1918.

Robert L. Colding, for plaintiff. Walter C. Ilartridge, solicitor-general, for defendant.

1. Under numerous decisions of this court the trial judge, after adjournment of the term at which the sentence was imposed by him, had no authority to change of modify the original sentence. Porter v. Garmony, 148 Ga. 261 (96 S. E. 426), and cases there cited.

2. It was not error to refuse to grant a discharge upon the writ of habeas corpus. Judgment affirmed.

All the Justices concur.