Opinion
17306.
MARCH 12, 1951.
REHEARING DENIED MARCH 26, 1951.
Habeas corpus. Before Judge Perryman. McDuffie Superior Court. June 9, 1950.
Randall Evans Jr., and Alex Boone, for plaintiff in error.
Eugene Cook, Attorney-General, J. R. Parham, Assistant Attorney-General, and Durwood T. Pye, contra.
1. The motion to dismiss the certiorari was properly overruled.
2. The traverse to the answer of the ordinary was properly stricken on motion.
3. "Even if the judge of the superior court should disagree with the ordinary on the facts involved in the trial of a habeas corpus case, on certiorari, the case should be remanded for a new trial, and not finally adjudicated by the reviewing court." Smith v. Bragg, 68 Ga. 650 (3). "A superior court has no authority, upon the hearing of a writ of certiorari, to render a final judgment when issues of fact are involved and the case does not necessarily depend upon a controlling question of law. When it is proper so to do, the superior court may remand the case to the court from which it came, with instructions." Almand v. Ga. Railroad Banking Co., 102 Ga. 151 ( 29 S.E. 159); Akridge v. Watertown Steam Engine Co., 77 Ga. 50; Savannah, Thunderbolt Isle of Hope Ry. v. Fennell, 100 Ga. 474 ( 28 S.E. 437); Holmes v. Pye Co., 107 Ga. 784 ( 33 S.E. 816); Alabama Great Southern R. Co. v. Austin, 112 Ga. 61 ( 37 S.E. 91); Williams v. Bradfield, 116 Ga. 705 ( 43 S.E. 57); Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 ( 45 S.E. 250); Atlantic Coast Line R. Co. v. Shuman, 121 Ga. 113 ( 48 S.E. 680); Bass Dry Goods Co. v. Electric Storage Battery Co., 123 Ga. 640 ( 51 S.E. 579); Williams v. Stocks, 19 Ga. App. 123 ( 91 S.E. 228); Keough v. Ga. Power Co., 40 Ga. App. 336 ( 149 S.E. 435); Davis v. Moore, 47 Ga. App. 579. (171 S.E. 166).
4. The petition for habeas corpus alleges that the sentences imposed upon the plaintiff in error were not "consecutive," but that they were served concurrently. In entering a final judgment and remanding the plaintiff in error to the custody of the warden, the judge of the superior court necessarily held contrary to this contention of the plaintiff in error. Such a ruling, however, would not be controlling in the case. There would still remain questions of fact as to whether or not the sentences had been fully executed by the time actually served by the plaintiff in error, with proper allowance for "good conduct" and "extra good time" (Ga. L. 1946, pp. 46, 53, Code, Ann. Supp., § 77-380) under rules and regulations of the State Board of Corrections. The judgment is reversed with direction that the case be remanded to the ordinary for further hearing upon the questions of fact involved.
No. 17306. MARCH 12, 1951. REHEARING DENIED MARCH 26, 1951.
In Delinski v. Dunn, 206 Ga. 825 ( 59 S.E.2d 248), this court affirmed the judgment of the judge of the superior court in reversing the order of the ordinary releasing the plaintiff in error on the writ of habeas corpus, and ordering a new trial. In that case the answer of the ordinary stated that he could not remember the case well enough to make a full and complete answer, and it was held, under the provisions of the Code, § 19-502, that the judge of the superior court properly ordered a new trial. Upon retrial of the case the ordinary again ordered the discharge of the plaintiff in error. The defendants in error presented a petition for certiorari, which was sanctioned. The bill of exceptions assigns as error the judgment of the judge of the superior court, reversing the judgment of the Ordinary of McDuffie County and remanding the plaintiff in error to the custody of the warden. Error is also assigned on the judgment of the judge of the superior court in overruling a motion to dismiss the certiorari, and on an order dismissing the traverse of the plaintiff in error to the answer of the ordinary. The petition for certiorari alleged that the judgment of the ordinary, dated June 9, 1950, sustaining the petition for habeas corpus, "was and is contrary to law, contrary to the evidence, without any evidence to support the same, and contrary to the principles of justice."
In substance, the petition for habeas corpus, which was duly attached to the petition for certiorari as an exhibit, alleged that the plaintiff in error was being restrained of his liberty by the State Board of Corrections, composed of named persons, and that the Ordinary of McDuffie County had jurisdiction because J. C. Dunn, a member of the State Board of Corrections, was a resident of McDuffie County. The plaintiff in error alleged: His illegal restraint was based upon certain sentences imposed by the Superior Court of Fulton County, Georgia (on September 13, 1933), for the kidnapping of the late John K. Ottley, which charge was made also to include the offense of robbery, carrying a pistol without a license, and carrying a pistol concealed. He is restrained of his liberty under the pretext that the sentences require his imprisonment. In 1943, the State Board of Pardons and Paroles enacted rule 6, termed "Conditional Release," which is set out in the petition for habeas corpus. The State Board of Corrections admits that he is entitled to three years and seven months statutory good time; and he has been required to remain in prison for more than three years longer than his sentences require. If the sentences are computed consecutively, when they are not by law made consecutive, proper allowance of statutory good time requires his release, his minimum term having already expired prior to the date of the petition. The attempt of the Judge of the Superior Court of Fulton County to require him to serve one year for carrying a pistol concealed, one year for carrying a pistol without a license, four to six years for armed robbery, and fifteen to twenty years for kidnapping, is cruel, excessive, and unusual punishment, and in violation of article 8 of the Constitution of the United States, and in violation of art. 1, par. 9 (quoted) of the Constitution of Georgia.
On the hearing before the ordinary, Robert Carter, an employee of the State Board of Corrections, testified: He knew Mr. Edward B. Everett of the State Board of Pardons and Paroles, and knew his signature signed to a certain letter dated August 15, 1949, containing the following statement: "In re: Randolph Delinski, No. 3943. This will acknowledge receipt of your letter of August 11. According to the records of the Department of Corrections, Delinski's minimum sentence will expire on February 2, 1951." The witness refused to testify that Mr. Everett obtained this information from the State Board of Corrections. Counsel asked: Q. "Will you look at your records and see whether or not on August 15, 1949, the minimum expiration date of this sentence was February 2, 1951?" A. "That is our record from the Board of Corrections." Counsel then asked: "Then, it is true that his minimum sentence as of August 15, 1949, would have expired February 2, 1951?" To which the witness replied: "Yes, sir." After requesting the witness to identify a letter from Mr. Hatchett (of the State Board of Corrections), having reference to the computation of good time earned by the plaintiff in error, counsel asked the witness: "I will ask you whether or not if on December 16, 1948, he was thoroughly entitled, and your Board was giving him credit for three years and seven months good time, statutory —" Answer: "That is right."
The witness Carter testified: that the minimum expiration date of the original sentences was September 13, 1954; by adding the time the plaintiff in error was at liberty by escape, the minimum expiration date was extended to November 6, 1955; that he was entitled to good time of three years and seven months, which would reduce the expiration date to April 6, 1952; that by reducing the expiration date by extra good time of eight months and nine days the expiration date would be July 27, 1951. Counsel for the plaintiff in error inquired of the witness as follows: "If that two years [good time] was improperly taken from him, he would be getting out July 27, 1949?" To which the witness answered: "Yes, he would have; but I am [not?] now agreeing with that." The witness testified that, in so far as he knew, the State Board of Corrections had not forfeited any good time earned by the plaintiff in error. A card was introduced, identified by the witness as one mailed out by the State Board of Corrections, showing a minimum release date of April 6, 1952, maximum, December 6, 1956, with the notation: "Statutory good time allowed 3 years, 7 months on minimum, 5 years 11 months maximum." Upon request to explain the different times, the witness stated that he would have to figure it, that the calculation was complicated.
On examination by the State, the witness testified in part as follows: "Q. Mr. Carter, when does the minimum sentence expire, the minimum sentence? A. The minimum sentence has not expired. Q. When does it expire, from the office entry? A. I will say this, Mr. Pye; he has not been released. Had he continued in the penitentiary, with a good conduct record, it would have expired, with what good time it was possible for him to earn, on February 2, 1951. Q. Had he not escaped? A. No, that is including forfeiture of time we say forfeiture of the time he did not earn; because escapes are figured in that release. Had he remained in, it would have expired on February 2, 1951. . . Q. Can you compute time where he will be entitled to — when he will have served his minimum sentence less the good time he has earned since his last attempted escape? A. According to my computation, it would be July 27, 1951. . .Q. How much more time does he have to serve before his minimum sentence less good time, expires? A. He would have to serve until February 2, 1951. Q. And would this make up for this last time he left and has been out? A. No, sir. Q. That would be added? A. Yes, sir. Q. How much would be added for the time that he has been out? A. November 23, 1951."
On examination by counsel for the plaintiff in error, the witness testified: "Q. All right, now; just now in speaking of time and computation, with Mr. Pye, I didn't understand that you meant to change what you said to me, which was that giving him credit for three years and seven months, and credit for eight months and nine days extra good time, that unless those two years were properly taken away from him, that his sentence would have expired July 27, 1949; is that right? A. Yes, sir."
The rules of the State Board of Pardons and Paroles were introduced in evidence. The record of the conviction of the plaintiff in error and the sentences imposed upon him were introduced in evidence, and are made a part of the record.
1. In the motion to dismiss the certiorari, it is contended that at the time the certiorari was sanctioned H. T. Brice was not a member of the State Board of Corrections, and not a proper party plaintiff; that "said action constitutes an improper joinder and misjoinder of parties plaintiff, and subjects the said proceeding to dismissal." The inclusion of the name of H. T. Brice as a member of the State Board of Corrections would not subject the entire proceeding to dismissal. The original petition for habeas corpus named H. T. Brice as a member of the State Board of Corrections. The fact that his term of office expired between the dates of the filing of the petition for habeas corpus and the sanction of the petition for certiorari would not substantially affect the merits of the case. The inclusion of his name in the petition for certiorari should be regarded as mere surplusage. Mitchell v. Great Atlantic Pacific Tea Co., 7 Ga. App. 824 (3) ( 68 S.E. 343).
It is further asserted that the parties plaintiff "and their proper representative capacities are not described and named." The petition was brought in the name of members of the State Board of Corrections, described as such, and Roland Lawrence, "as Warden for the State of Georgia." The designation of Roland Lawrence as "Warden for the State of Georgia" is an improper designation of his official capacity. Since the courts are bound to take judicial notice of the public officers of this State, the improper designation of an official could not adversely affect any substantial right of the plaintiff in error.
It is further contended that the certiorari proceedings failed to show affirmatively service upon the ordinary. Attached and made a part of the record is a proper notice by the clerk of the superior court to the ordinary of the sanction of the certiorari and an acknowledgement of service by the ordinary. This contention, therefore, is without merit.
The plaintiff in error insists that the certiorari proceedings should be dismissed because no proper notice was given to the defendant in certiorari, or his counsel. The record shows a copy of a notice served by the Sheriff of McDuffie County upon counsel for the plaintiff in error, which notice was in substantial accord with the requirements of the Code, § 19-212. If the sheriff did not, in fact, serve the notice as set forth in his affidavit, and counsel desired to take advantage of such failure, his proper recourse would have been by traverse to the sheriff's return. American Bonding Surety Co. v. Adams, 124 Ga. 510 ( 52 S.E. 622). In Milam v. Sproull, 36 Ga. 393, 396, this court dealt with the sufficiency of the notice of the sanction of a writ of certiorari, and it was there held: "The object of giving notice to a party of the sanction of a writ is to inform him of the fact, so that he may take such steps as he may deem proper for his protection in the premises. If the party be in fact notified in writing, though not formally, and appear at the time and place of hearing the certiorari, the writ should not be dismissed."
The answer of the ordinary to the petition for certiorari is not subject to the contention that it is insufficient.
Headnotes 2, 3, and 4 do not require elaboration.
Judgment reversed, with direction. All the Justices concur, except Duckworth, C.J., Candler, and Hawkins, JJ., who dissent.
It appearing from the record in this case that the plaintiff in the habeas corpus proceeding received sentences on September 13, 1933, aggregating 21 years minimum and 28 years maximum, and that the greatest amount of statutory good time which could possibly have been granted to him under Code (Ann.), §§ 77-210 and 77-341, now Code (Ann. Supp.), § 77-380, was 4 years, 5 months, and 6 days — deducting this good time from the minimum sentences of 21 years, would leave 16 years, 6 months, and 24 days. The plaintiff having served only 15 years, 11 months, and 18 days up to the time of his release by the ordinary on August 18, 1949, his minimum sentences had not been served, and had not expired. On a habeas corpus petition, brought by a prisoner who contends that his sentences have expired or have been served, he is not entitled to bring in question "extra good time" claimed to have been earned by him under the rules of the State Board of Corrections, in the absence of a showing by the records of the prison authorities that such "extra good time" has been granted to the petitioner. Chattahoochee Brick Co. v. Goings, 135 Ga. 529 ( 69 S.E. 865); McConnell v. Floyd County, 164 Ga. 177 (2) ( 137 S.E. 919). The superior court did not err in sustaining the certiorari, complaining of the judgment of the ordinary releasing the petitioner, and in ordering that he be remanded to the custody of the proper prison authorities. Its judgment should, therefore, be affirmed.