Scott v. McClelland , 1926 Ga. LEXIS 214 ( 1926 )

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that the habeas corpus court did not err in refusing to grant an order discharging the applicant from custody. The sentence under which he was held was a legal sentence. In section 1065 of the Penal Code (1910) it is provided: “Except where otherwise provided, every crime declared to be a misdemeanor is punishable by a fine not to exceed one thousand dollars, imprisonment not to exceed six months, to work in the chain-gang on the public roads, or on such other public works as the county or State authorities may employ the chain-gang, not to exceed twelve months; any one or more of these punishments in the discretion of the judge.” Under the terms of that section the court had authority to impose a sentence confining the defendant in the chain-gang for a period of twelve months. The fact that he divided it into two periods of six months each did not make the total sentence to the chain-gang exceed the period fixed by the statute. The alternative sentence was in the discretion of the court. The suspension of the last six months was without authority conferred by law. It is unnecessary to cite cases holding that the judge of the superior court is without authority to suspend a sentence as the court attempted to do in this case. And if an order of suspension is granted at any time, it may be revoked, or, whether revoked or not, the sentence as originally imposed may be put into execution. In the case of Cook v. Jenkins, 146 Ga. 704 (92 S. E. 212), it was said: “Where a defendant was convicted of a misdemeanor in selling and keeping intoxicating liquors, and a sentence was imposed directing that he be confined in the county jail for a term of six months, to be discharged upon the payment of a fine of $500, to include the cost, and also that he serve twelve months on the chain-gang, but this latter penalty to be suspended on condition that the accused should leave the State, so much of the sentence as imposed the penalties mentioned was legal and enforceable, but that part which related to suspension of the penalty of serving a term on the chain-gang was illegal; and the defendant having been arrested after payment of the fine specified in the sentence, the judge properly refused to discharge him on habeas corpus sued out against the sheriff on the theory that the suspension of the sentence was enforceable.” The sentence imposed in this case was not in pursuance of the powers conferred by the act approved August 19, 1913, which is an act to give all courts having jurisdiction in felony and misdemeanor cases authority, in certain cases, to mold their sentence so as to allow defendants to serve the same outside of the place of detention, under the supervision of the court. And so, as was held in the case of Cook v. Jenkins, supra, there is nothing in the provisions of the probation act last referred to which renders that law applicable to the facts in this case.

The rulings made in headnotes 2, 3, and 4 require no elaboration. Other exceptions to rulings made by the habeas corpus court are without merit. The ruling first made, holding that the sentence was not illegal and that the judge was without authority to suspend the sentence, really disposes of the controlling question in this ease. Judgment affirmed.

All the Justices concur.