Avery v. State

97 S.E. 204, 22 Ga. App. 746, 1918 Ga. App. LEXIS 734

• Court: Court of Appeals of Georgia
• Decided: October 22, 1918
• Docket: 10101
• Status: Published

Opinion

Broyles, P. J.

1. A judge in this State has no authority to suspend the execution of a sentence imposed by him in a criminal case, except as an incident to a. review of the judgment. Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); O’Dwyer v. Kelly, 133 Ga. 824 (67 S. E. 106); Daniel v. Persons, 137 Ga. 826 (74 S. E. 260); Short v. Dowling, 138 Ga. 834 (76 S. E. 359); Hancock v. Rogers, 140 Ga. 688 (79 S. E. 558); Cook v. Jenkins, 146 Ga. 704 (92 S. E. 212); Norman v. Rehberg, 12 Ga. App. 698 ( 78 S. E. 256).

2. It is clear, from the agreed statement of facts set out in the bill of exceptions, that the sentence imposed was a straight chain-gang sentence, and that its execution was suspended, and that the defendant was not placed on probation; consequently the provisions of the probation act of 1913 (Ga. Laws, 1913, p. 112) have no application to this case.

3. The judge having no authority to suspend the sentence imposed upon the defendant, and the defendant having subsequently been arrested and put in the chain-gang to serve out the sentence, the judge did not err in refusing the defendant’s motion “to cancel and enter satisfied the judgment and sentence.” See authorities cited above. This is true although the sentence imposed was twelve months in the chain-gang, and the subsequent arrest of the defendant was after the expiration of twelve months from the date of the sentence. Neal v. State, Norman v. Rehberg, Daniel v. Persons, supra.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur. H. B. Moss, Jere M. Moore, for plaintiff in error. Jule Felton, solicitor, contra.