1. The exception is to a judgment favorable to the prisoner in a habeas corpus case. It is not an appeal by the State in a criminal case, and this court has jurisdiction to review the judgment.
2. The trial judge properly inquired into the contentions of the prisoner as to the legality of his restraint, and it was not error to overrule the demurrers of the respondent.
3. The contention of the prisoner that the remainder of his former sentences ran concurrently with the sentence imposed in 1956 can not be sustained, and the trial judge erred in discharging the prisoner.
The petition for habeas corpus shows that the prisoner entered a plea of guilty on December 9, 1953, on a charge of burglary, and was sentenced for a term "of not less than three (3) years, and not more than five (5) years, to be computed as provided in the act approved August 27, 1931." On the same date he entered a plea of guilty on a second charge of burglary, and was sentenced for a term "of not less than one (1) year, and not more thank one (1) year," to be computed as provided by the 1931 act, the sentence reciting: "The above sentence to follow sentence in case No. 69860--Ct. 1." On May 25, 1955, the prisoner was paroled by the State Board of Pardons and Paroles. On April 5, 1956, the prisoner was sentenced on a charge of arson for a term "of not less than three (3) years, and not more than five (5) years, to be computed as provided in the act approved August 27, 1931." On March 12, 1957, on his plea of guilty to a felony charge, the prisoner was sentenced to serve not less than two years, and not more than two years, on each of two counts, to be computed as provided in the act approved August 27, 1931, "each of the above sentences to run concurrently with sentence in case No. 73153," (being the arson sentence of from 3 to 5 years). Following the imposition of the sentence in the arson case on April 5, 1956, the State Board of Pardons and Paroles, on April 6, 1956, revoked the prisoner's parole previously granted as to the sentences imposed on December 9, 1953. In the order of revocation it was provided that the remainder of the prisoner's sentences imposed on December 9, 1953, should be served "consecutively" with sentence imposed on April 6, 1956.
The petition for habeas corpus asserts that the felony sentences imposed on the prisoner on December 9, 1953, continued to run following the revocation of his parole; that the sentence of April 5, 1956, commenced running on that date; and that, by reason of statutory time and extra time allowable (he having served as a model prisoner), all sentences have expired, and he is entitled to be discharged.
The judge of the superior court ordered the prisoner discharged, conditioned upon his giving bond to abide the final decision upon review.
1. The constitutional jurisdiction of the Supreme Court "in all habeas corpus cases" (Constitution, art. VI, sec. II, par. IV (Code, Ann., 2-3704) is limited on review to a determination as to the legality of the detention, and not as to the guilt or innocence of the person detained. Code 50-126, as amended, Ga. L. 1946, pp. 726, 747; Sanders v. Paschal, 186 Ga. 837 (199 S. E. 153). This is not, therefore, an attempt by the State to appeal in a criminal case.
The case of State v. Thompson, 175 Ga. 189 (165 S. E. 34), and similar cases, have no application to the jurisdiction of this court to review all habeas corpus cases. The act of the General Assembly (Ga. L. 1956, pp. 374, 375; Code, Ann., 50-107), pertaining to the return day for a writ of habeas corpus in a criminal case, does not purport to restrict or limit the constitutional jurisdiction of this court in habeas corpus cases. Legislative acts, however solemnly enacted, cannot repeal or revise the Constitution of this State. The motion to dismiss is without merit, and is denied.
2. Where it is contended by the prisoner that he has executed the sentence or sentences imposed, habeas corpus is a proper remedy to call into question his alleged illegal restraint. Code 50-101. The demurrers of the respondent were properly overruled.
3. "Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts and sentenced to imprisonment, such sentences shall be served consecutively, the one after the other, unless otherwise expressly provided therein." Ga. L. 1956, pp. 161, 168 (Code, Ann., 27-2510). The above act was approved February 20, 1956, and was of full force and effect at the time the prisoner was sentenced to serve not less than three years, and not more than five years, on his plea of guilty on April 5, 1956.
The prisoner was sentenced to serve a minimum of four years on two felony sentences imposed on December 9, 1953. Admittedly, these sentences had not expired at the time of the imposition of the sentence for arson on April 5, 1956 (which sentence did not provide that it was to be served concurrently with any previous sentence). The prisoner would not, therefore, begin to serve the sentence for arson until the expiration of the prior sentences, with such "good time" as might be allowed by law. Ga. L. 1956, pp. 161, 178, 24 (Code, Ann., 77-320).
A sentence continues to run while being served on probation. Wimbish v. Reece, 170 Ga. 64
(152 S. E. 97); Johnson v. Walls, 185 Ga. 177
(194 S. E. 380); Cross v. Huff, 208 Ga. 392
, 396 (67 S. E. 2d 124); Buice v. Bryan, 212 Ga. 508 (4)
(93 S. E. 2d 676).
The powers of public officers are fixed by law, and no officer may exercise a power not conferred. The State Board of Pardons and Paroles has not had conferred upon it any power to change the sequence of sentences legally imposed by the courts. The revocation of the parole of the prisoner, within itself, under the law, would require that the prior sentences be served in full (less allowance for "good time") before the sentence imposed on April 5, 1956, would begin.
It is contended by the prisoner that the provision in his 1956 sentence that it was "to be computed as provided in the act approved August 27, 1931," had the legal effect of an express provision therein that it was to be computed from the time of the sentence, and not to follow consecutively after his prior sentences, under Ga. L. 1956, pp. 161, 168 (Code, Ann., 27-2510).
The act approved August 27, 1931 (Ga. L. 1931, p. 165; Code 27-2505), provides that, when the defendant is in jail or otherwise incarcerated and no appeal is pending, the sentence shall be computed from the date of its imposition. "Under a rational construction of the statute its sole purpose was to give a defendant credit for time involuntarily spent in jail after sentence, . . ." Murphy v. Lowry, 178 Ga. 138, 142 (172 S. E. 457); Crider v. Clark, 182 Ga. 371 (185 S. E. 326); Aldredge v. Potts, 187 Ga. 290 (200 S. E. 113).
The 1931 act was not intended to apply to sentences at different terms of court, and the reference to the 1931 act in the sentence of the prisoner did not amount to an express provision that the sentence should be computed from its date.
Under the foregoing rules, the prisoner's sentences had not expired at the time of the hearing on the habeas corpus petition, and the judge of the superior court erred in ordering his discharge.