Mallory v. Chapman

Hines, J. (After stating the foregoing facts.) 1. In the view which we take of this case, it is unnecessary to decide whether the order of the judge of February 21, 1924, resentencing the defendant, was valid or otherwise. If that order was void, the defendant was still confined under the original sentence imposed upon him on his conviction of the offense of murder. If the original sentence was still of full force, then the restraint of his liberty by the sheriff was entirely legal and proper thereunder, whether the order of February 21, 1924, was good or bad. 2. This brings us to consider the question whether the original sentence of the defendant was of full force and effect. One sentence is all that is ever imposed in a capital case. Such sentence is to be executed at the time fixed therein, or at such other time as the judge shall fix thereafter. Baughn v. State, 100 Ga. 554, 559 (28 S. E. 68, 38 L. R. A. 577). It is insisted, however, that the original sentence in this case became void and functus officio, by reason of the fact that the Governor granted a respite until February 19, 1924; and that the failure of the sheriff to execute the defendant on that day, in obedience to a telephonic message from the trial judge not to do so, had the effect of rendering such original sentence void. To this contention we cannot agree. This position is in conflict with the plain and unambiguous statute of this State. “Whenever, for any reason, any convict sentenced to the punishment of death shall not have been executed pursuant to such sentence, and the same shall stand in full force, the presiding judge of the superior court where the conviction was had, on the application of the solicitor-general of the circuit, or other person prosecuting for the State, shall issue a habeas corpus to bring such convict before him; . . and upon the convict being brought before the judge, . . he shall proceed to inquire into the facts [232] and circumstances of the case; and if no legal reason exists against the execution of the sentence, he- shall sign and issue a warrant to the sheriff of the proper county, commanding him to do execution of such sentence at such time and place as shall be appointed therein, which the sheriff shall do accordingly.” Penal Code (1910), § 1072. The trial judge can exercise the jurisdiction vested in him under this section in vacation. Cogswell v. Schley, 50 Ga. 481; Wiggins v. Tyson, 114 Ga. 64 (39 S. E. 865). But counsel for the defendant contend that section 1072 of the Penal Code is applicable only in cases where legal and physical reasons prevent execution of the sentence. This narrow and restricted construction should not be placed on this section. The section is broad enough to cover all cases wherein, “for any reason,” convicts sentenced to the punishment of death shall not have been executed pursuant to the sentences imposed upon them. It covers all eases where sentences, which are in full force and effect, have not been executed for legal or illegal reasons. The failure of the sheriff to execute any convict sentenced to the punishment of death, by forgetfulness, inadvertence, intentional or unintentional omission of duty, or for any other reason, proper or improper, does not render the sentence of such convict functus officio, and does not entitle the convict to a discharge from the imprisonment imposed in pursuance of such sentence. Under the above section of the Penal Code, a new day can be set for the execution. This could be done by the common law. The principle has been fixed and settled since the trial of the Earl of Ferrers, who was tried before the Lords in Parliament for murder, and by them convicted. In that case the day appointed for the execution of the noble Earl elapsed before his execution; and the question arose whether a new date could be appointed for the execution. “It was resolved by all the Judges that if a peer be convicted of murder before the Lords, in Parliament, and the day appointed by them for execution, pursuant to 25 Geo. 2, should elapse before such execution done, a new time may be appointed for the execution.” 2 Hawk. P. C. c. 21, § 1. In Ex parte Friday Nixon, 2 S. C. (N. S.) 4, it is announced: “A prisoner who has been convicted of murder, and sentenced to be executed, will not be discharged on habeas corpus because the sheriff has permitted the day assigned for the execution to elapse. A new day will be assigned.” In Ex parte Howard, 17 N. H. 548, [233] Chief Justice Parker said: “There may be.a failure to execute the order at the time prescribed, from various causes — providential occurrences, riots, wilful default of the sheriff. Neither of these can operate as a pardon, or give the prisoner a right to be discharged. The sentence still remains in force. If it has been stayed by a reprieve, it is to be executed at the end of the time specified in the reprieve. . . If from these or any other causes the time .prescribed for execution has passed, the court must make a new order, if no other disposition has been made of the case.” See Ex parte Cross, 20 D. C. 573; 16 C. J. 1331, §.3133. This being so, the trial judge did not err in refusing to discharge the petitioner from custody, and in remanding him to the custody of the sheriff to await the execution of his original sentence upon a proper fixing of a new date. 3. The court below set April 23, 1924, as a new date .on which petitioner was to be hanged. As this case was pending in this court, and had not been heard at the time, we granted a supersedeas until the same could be heard and determined by this court. Having decided the case and having affirmed the judgment of the court below, said supersedeas is hereby terminated; and we direct that, upon the remittitur of this court being filed with the clerk of the court below, the defendant be brought before the trial judge in accordance with said section 1072 of the Penal Code, and a proper order passed by the trial judge for the execution of the original sentence imposed upon petitioner. Judgment affirmed. All the Justices concur.