Conley v. Pope , 161 Ga. 462 ( 1925 )

Hines, J.

1. Where a female, under indictment for a misdemeanor, pleads guilty, the judge may in his discretion sentence her to labor and confinement in the woman’s prison on the State farm. Penal Code, § 1065.

2. Where, upon the entry of her plea of guilty to such indictment, the female defendant was sentenced to work on the State farm at Milledgeville, or on such other works as the authorities of said State and farm shall direct, for a term of twelve months, and to pay a fine of $75, on payment of which the said farm sentence was to be suspended during the defendant’s good behavioui-, such sentence, when properly construed, sentenced the defendant to pay a fine of $75 and to labor and confinement in the woman’s prison on the State farm, in lieu of a chain-gang sentence; and that portion of the sentence subjecting her to work “on such other works as the authorities of said State and farm shall direct” is to be interpreted as sentencing the defendant to do such work as may be required of a female convict sentenced to labor and confinement in the woman’s prison on and at such farm.

3. The oral remarks of the judge to the sheriff, in passing sentence on the • defendant, to watch after her, and if he had further trouble with her to take her to the chain-gang, can not be construed as placing the defendant upon probation, under the act of August 16, 1913 (Acts 1913, p. 112), as such oral declarations of the judge constitute no part of the sentence. Lytle v. DeVaughn, 81 Ga. 226 (2) (7 S. E. 281); Freeman v. Brown, 115 Ga. 23, 27 (41 S. E. 385); Alexander v. Chipstead, 152 Ga. 851, 861 (111 S. E. 552); Foy v. McCrary, 157 Ga. 461 (121 S. E. 804).

4. The trial judge had no power to suspend the portion of the sentence subjecting the defendant to work and confinement upon the State farm. Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); Hancock v. Rogers, 140 Ga. 688 (2) (79 S. E. 558); Cook v. Jenkins, 146 Ga. 704 (92 S. E. 212); Avery v. State, 22 Ga. App. 746 (97 S. E. 204). So much of the sentence as imposed the penalties mentioned is legal and enforceable, but that part which related to the suspension of the penalty of serving a term on the State farm was illegal; and the defendant having been arrested after the payment of the fine specified in the sentence, the judge properly refused to grant to her the writ of habeas corpus sued out against the sheriff. Cook v. Jenkins, supra. This is true although the subsequent arrest of the defendant was after the expiration of twelve months from the date of the sentence. Neal v. State, supra; Daniel v. Persons, 137 Ga. 826 (74 S. E. 260); Norman v. Rehberg, 12 Ga. App. 698 (78 S. E. 256).

No. 5023. December 19, 1925.

5. Construing the petition of the applicant most strongly against her, and construing the language of the petition of the defendant, “that she has paid said fine and served said sentence,” in connection with her further allegation therein, “that she was put on probation by the judge of the superior court of said county, under the care and custody of the sheriff,” the meaning of the former allegation is, not that she had served her sentence at the State farm, but that she had served it under said alleged probation, which, we have seen, was not provided for in her sentence.

6. Applying the above principles, the court did not err in refusing to grant to the defendant the writ of habeas corpus sued out against the sheriff. Judgment affirmed.

All the Justices concur. O. M. Duke, for plaintiff. Frank B. Willingham, solicitor-general, for defendant.