Summary
In Whittle v. Jones, 198 Ga. 538, 545 (32 S.E.2d 94), this court had under consideration a habeas corpus case in which the judgment of the trial court discharging the petitioner from custody was reversed.
Summary of this case from Sanders v. McHanOpinion
Nos. 14956, 14958.
OCTOBER 6, 1944.
REHEARING DENIED NOVEMBER 22, 1944.
Habeas corpus. Before Judge Chambers. Richmond city court. May 10, 1944.
George Hains, solicitor-general, John A. Boykin, solicitor-general, C. E. Presley, E. E. Andrews, and Durwood T. Pye, for plaintiff in error. Hammond, Kennedy Yow, contra.
1. The motion to dismiss the writ of error in the main bill is denied.
2. If an amendment to the constitution of this State, which in effect takes from the Governor the pardoning power and places it in the hands of a board of pardons and paroles, is, as to a person convicted of a crime committed before the adoption of said amendment, an ex post facto law contrary to the constitution of the United States, the former provision of the State constitution would, as to such person, remain effective.
3. When an amendment to the State constitution is silent as to whether it shall be given a retroactive operation, and if to do so would, in certain instances, render it void as being in effect an ex post facto law, it will be so construed as to give it a prospective application only.
4. This court will not pass on the constitutionality of a so-called law when it is challenged by a party whose rights are not affected thereby, nor until an attempt is made to exercise some right claimed under the provision sought to be attacked affecting the rights of the attacking party.
5. Every court has the inherent power to correct its own records to make them speak the truth.
6. The judgment of reversal of an order in a habeas-corpus case, discharging one from custody, carries with it a reversal of the order of exoneretur on a bail bond which the trial court improvidently permitted to be given after the petition was filed, the condition of the bond being his appearance upon the hearing of the habeas-corpus case and responding to the judgment of the court thereon.
Nos. 14956, 14958. OCTOBER 6, 1944. REHEARING DENIED NOVEMBER 22, 1944.
This is a habeas-corpus case brought by Jones against the sheriff, who Jones alleged was illegally restraining him of his liberty under a pretended sentence of Fulton superior court. The date of Jones's conviction was May 8, 1942. At that time, and at the date of the crime for which he was convicted, paragraph 12 of section 1 of article 5 of the constitution of this State provided that the Governor should have power to grant reprieves and pardons, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as might be provided by law relative to the manner of applying for pardons. On August 3, 1943, a constitutional amendment was adopted, which limited the foregoing power of the Governor to his right to suspend the execution of sentence of death after conviction until the State Board of Pardons and Paroles should have an opportunity of hearing the application of the convicted person, and the further right in the Governor to suspend the execution of a conviction of treason and report the case to the General Assembly at the next meeting thereof, with the authority given the legislature then either to pardon, commute the sentence, direct its execution, or grant a further reprieve. The same amendment created a State Board of Pardons and Paroles, lodging with them the power to grant reprieves, pardons, and paroles, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence for any offense against the State, after conviction, except in cases of treason and implement, and except in cases in which the Governor refused to suspend a sentence of death. The board was given authority to make such rules and regulations as might be authorized by law. A copy of the rules of the board is attached to the application for habeas corpus. Among the rules are: one, that a pardon will be granted only to that individual who can satisfactorily prove his innocence; another, that applicants for commutation must furnish the board with a transcript of the court record and evidence; and a third, which in effect provides that persons convicted of a felony will become eligible to apply for parole consideration only upon completion of one-third of the minimum sentence.
The applicant, with respect to the change in the State constitution, takes this position: That this portion of the State constitution is ex post facto and retroactive as to him, and that there has been substituted, in lieu of the Governor, a State Board of Pardons and Paroles composed of three members appointed by the Governor, as the only board or persons authorized under the constitution as amended to reprieve, pardon, or commute the penalty against the applicant. That said amendment is void and unconstitutional as against him and is in violation of article 1, section 10, paragraph 1, of the constitution of the United States, which prohibits a State from entering into any treaty, alliance, or confederation; from granting letters of marque and reprisal; from coining money and emitting bills of credit; from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or granting any title of nobility. That the amendment deprives him of a valuable and valid legal and constitutional right of having the Governor of the State pass upon his right to be reprieved, paroled, or pardoned. That said amendment is a substantial withdrawal of his rights, places him at a disadvantage, and requires that he convince three persons of his right to have his sentence commuted or a pardon granted instead of the one person as guaranteed to him under the constitution at the time of his conviction. That he is further injured as a result of said change because the State Board of Pardons and Paroles, created by the amendment and appointed by the Governor, has adopted a rule that it will not hear or consider an application for pardon, except where it is satisfactorily shown to the board that the accused is innocent of the crime charged, or reprieve or parole until the person incarcerated has served one-third of the sentence imposed; whereas, the Governor had the unlimited power to grant a pardon whether the person was innocent or guilty and to grant a parole before the service of any portion of the sentence. That he has been deprived of an opportunity to raise and have decided the legal rights above asserted, because said amendment was voted upon and adopted after his motion for new trial had been overruled, and after the case had been appealed to the Court of Appeals of Georgia; and that he could not present said question in that court because that court and the Supreme Court of Georgia refuse to hear, consider, and pass upon any question not presented in the trial court. That, as applied to him said amendment deprives him of due process of law as guaranteed to him under the constitution of the United States, which declares that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, and forbids any State from making or enforcing any law which abridges the privileges or immunities of citizens of the United States, and from depriving any person of life, liberty, or property without due process of law, and from denying any person within its jurisdiction the equal protection of the laws. He prayed for his discharge, and on the hearing, he was discharged from custody. The sheriff excepted. Jones filed a cross-bill.
In the cross-bill, Jones excepted to the overruling of his demurrer to the part of the response which set up that the sentence had been amended on May 10, 1944; also to the ruling admitting in evidence the amended sentence; and to the holding that the sentence imposed for perjury instead of subornation of perjury is not void because of the difference in the name of the crime for which he was sentenced and that for which he was tried and convicted; and to the overruling of his prayer for a discharge on this ground. The record shows that Jones was indicted in Fulton superior court for the offense of subornation of perjury, the indictment containing two counts, and bearing the clerk's number 54,654, and that he was tried on said charge and convicted by the jury on both counts, the verdict fixing the penalty. He was sentenced in accordance with the verdict. The sentences bear the same case number as the indictment, but each refers to the crime as perjury. He filed a motion for new trial, the orders thereon bearing the same case number, and the motion was overruled. He carried his case to the Court of Appeals, the bill of exceptions reciting that he had been tried for the offense of subornation of perjury, and convicted of said offense. The judgment was affirmed by the Court of Appeals. Two days after the petition for habeas corpus was presented, but before a hearing was had thereon, a written motion was filed in the superior court of Fulton County by the solicitor-general, which recited that by clerical error and inadvertence in preparing the forms of the sentence, they were headed "Sentence: charge: perjury," the words "subornation of" being omitted; and that the sentences were imposed on the verdict finding Jones guilty of subornation of perjury, and on an indictment charging him therewith. The motion prayed that the sentences be amended by inserting at the top of each, between the word "charge" and the word "perjury," the words "subornation of." Acting thereon, on the same day, the judge of Fulton superior court entered an order which recited that it appeared from an inspection of the record that the allegations of the motion were true, and he ordered that the sentences be amended as prayed. This was done at a term of court subsequent to the one during which the original sentences were entered, and apparently without notice to Jones. Original sentences, as recorded on the minutes, were headed as follows: "Sentence: Charge — sub. perjury, Fulton superior court, May term, 1942. No. 54654. The State v. Johnny J. Jones. Verdict of guilty."
1. There is a motion to dismiss the writ of error in the main bill on two grounds: first, that the evidence adduced upon the trial of the case and incorporated in the bill of exceptions has not been verified as required by the rules and the statutes; and second, because there is no exception to any final judgment. An examination of the bill of exceptions discloses not only a bona fide effort to eliminate the immaterial, but a successful attempt to do so. Counsel must be allowed some latitude and some discretion in making up a summary of the evidence to be incorporated. No abuse of such discretion is here shown. The final judgment was the one granting the writ of habeas corpus and discharging Jones from custody. There are in the bill of exceptions a number of special assignments of error on the final judgment. The motion to dismiss is denied.
2. It is insisted by the applicant that the new constitutional provision as to pardons works to his disadvantage, is a substantial withdrawal of his rights, and that, since he was convicted prior to the adoption of the amendment, it is as to him an ex post facto law. But, if it should for the moment be assumed that such position be a sound one, does it follow that he was entitled to his freedom under the habeas-corpus proceeding? If it is in effect an ex port facto law when applied to him, then the amendment is of no effect in his case, because it collides with a provision of the Federal constitution which declares that no State shall pass such a law. The attempt to amend the State constitution as to the matter here involved would be an abortive effort, and that instrument would remain in force as it was before the so-called amendment was adopted. Where does his position lead him? He desires the court to declare the amendment void as to him. If it were to be so adjudged, then the power of the Governor to grant him a pardon would remain unaffected, and no such authority would rest in a board of pardons and paroles. If he is right in his view that the amendment is as to him an ex post facto law, it is obliged to follow that his right to apply to the Governor for a pardon and the Governor's power to grant it are the same as on the day of his conviction, and before. For this reason alone, he is not entitled to be discharged from custody on the ground that, since the crime was committed, an ex post facto law has been passed which works to his disadvantage.
3. Again, in order to make his contention that the amendment is, as to him, an ex post facto law, he assumes that, under the amendment, the Governor's right to pardon those who were convicted of crime prior to its adoption was withdrawn. The amendment is silent as to this. If to apply it to all convicts, those convicted of crimes committed before as well as after its adoption, would make it, as to him, an ex post facto law, then the amendment would not be given retroactive operation. It is a well-known principle that a statute will not be construed in such a way as to make it unconstitutional if it can be avoided, and a statute is never to be given a retroactive operation unless such construction be absolutely demanded. Bank of Norman Park v. Colquitt County, 169 Ga. 534 ( 150 S.E. 841). The reason of the rule is applicable when construing a provision of a State constitution against an attack thereon based on a contention that it violates the Federal constitution. 16 C. J. S. 81, § 40. If the amendment be void if applied to cases where convictions were had before its adoption, then, since the amendment is silent as to whether it is intended to affect only those subsequently convicted, it will be presumed that it was not intended thereby to apply to those cases where, if it were applied, it would have the effect of an ex post facto law. Compare Conyers v. Commissioners of Bartow County, 116 Ga. 101 ( 42 S.E. 419); Bond v. Munro, 28 Ga. 597. The amendment under attack repealed the existing provision as to the Governor's pardoning power. A repealing act will not be given a retroactive operation so as to divest previously acquired rights. Dennington v. Roberta, 130 Ga. 494 ( 61 S.E. 20). So, it would seem that if the applicant be correct in his contention that the amendment undertook to deprive him of a substantial right, the answer would be that the amendment, if such be its effect, would not be given a retrospective operation so as to include him.
4. The Supreme Court will not pass on the constitutionality of a so-called law when it is challenged by a party whose rights are not affected by it. Hazleton v. Atlanta, 147 Ga. 207 ( 93 S.E. 202); Witherow v. Board of Drainage Commissioners, 155 Ga. 476 ( 117 S.E. 329); Webb v. Atlanta. 186 Ga. 430 ( 198 S.E. 50). Nor, until an attempt is made to exercise some right claimed under the provision under attack, affecting the rights of the attacking party, will the courts pass upon the validity of the same. Toney v. Macon, 119 Ga. 83 ( 46 S.E. 80); Carswell v. Wright, 133 Ga. 714 ( 66 S.E. 905); Owens v. Watkins, 189 Ga. 311 ( 5 S.E.2d 905). Comity to a co-ordinate department of the government requires of courts that cases shall not be disposed of on constitutional grounds, when it is possible to avoid such questions without a sacrifice of the rights of parties. Board of Education of Glynn County v. Brunswick, 72 Ga. 353.
An endeavor has been made in previous portions of this opinion to demonstrate that if Jones should be correct in his contention that the amendment referred to, in so far as it affects him, is in effect an ex post facto law and therefore unconstitutional, he is given no right to be discharged from custody; but that the constitution as it was before the amendment, is, as to him, still of force. Also, we have endeavored to show that if it would be, as to him, an ex post facto law, it was not to be supposed that it was intended to act retroactively, but to be limited in its operation to those convicted after its adoption. If the correctness of either of the above propositions has been demonstrated, it follows that there is no necessity for passing on the constitutional question raised by him, for he has by the amendment been denied no right or privilege which he had before. In thus declining to pass upon the constitutional question, it should be made clear that we have assumed only for the sake of argument the correctness of his contention that the new provision contained in the amendment is, as to him, an ex post facto law and void. But, in any view of the matter, the ratification by the people on August 3, 1943, of an amendment to the State constitution, placing the pardoning power in a board of pardons and paroles, did not have the effect of discharging from custody all persons convicted by the courts prior thereto. The judge erred in giving him his freedom on the hearing of his application for habeas corpus.
5. It is clear from this record that Jones was sentenced for the crime for which he was tried and convicted, to wit, subornation of perjury, and that by a mere clerical error the crime was otherwise described in the sentence. Every court has the inherent authority to correct its own records to make them speak the truth. Ellis v. Clarke, 173 Ga. 618 ( 160 S.E. 780); Grand Chapter v. Wolfe, 175 Ga. 867 ( 166 S.E. 755); Beecher v. Carter, 189 Ga. 234 ( 5 S.E.2d 648). In Ellis v. Clarke, supra, the amendment was made pending the habeas-corpus hearing before a judge of a city court, and this court held that the habeas-corpus court did not err in suspending the hearing until the minutes of the superior court could be corrected; nor did he err in admitting in evidence the certified copy of the order of the judge of the superior court amending its minutes, on the ground that it was not a "nunc pro tunc" order. The report of that case shows that the order was entered several terms of court after the minutes were originally entered. The correction in the instant case was made from an inspection of the record, to make the sentences conform to the actual record. No issue of fact was involved, and that the order correcting the same was made ex parte makes no difference. But, if the sentences had been void, a verdict of guilty appearing in the record, it would seem that this would not entitle the applicant to his discharge on habeas corpus. He stands convicted of a crime, and if no sentence had been rendered, or if the one that was passed was void, and the correction did not cure it, the proper procedure apparently would have been to remand him to be sentenced for his crime. See Morris v. Clark, 156 Ga. 489 ( 119 S.E. 303), and the authorities there cited.
6. After the application for habeas corpus was filed, the judge permitted the applicant to be released on bail, and he gave bond conditioned upon his appearing at the hearing and responding to the judgment of the court thereon. He was therefore released from custody, and was at large under said bond at the time of the habeas-corpus trial. He appeared in court, however, and attended said trial, and thereafter remained at liberty under said bond. One of the reasons urged by the respondent's counsel why it was error to discharge the applicant was that he was not in custody at the time the case was heard. We have not dealt with that in the opinion because it was deemed unnecessary. However, the plaintiff in error also assigns error on that part of the judgment under review which adjudges that, the petitioner having appeared in court pursuant to the terms of the bond, said bond be discharged and satisfied. We know of no law authorizing the judge to release on bail a person convicted of crime pending the determination of the issue raised by his application for habeas corpus. See Hames v. Sturdivant, 181 Ga. 472 ( 182 S.E. 601), Johnson v. Aldredge, 192 Ga. 209 ( 14 S.E.2d 757), and the authorities there cited. The exception to that part of the judgment having to do with the discharge and satisfaction of the bond is, however, well taken. Now that the attention of the trial judge is called to the fact that no authority was vested in him to release the applicant on bail, and the judgment of this court being that he was not entitled to his discharge on habeas corpus, it may be anticipated that the trial judge will, so far as it may be in his power, give such further direction in the matter as will restore the status as it was immediately before the filing of the petition for habeas corpus.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. All the Justices concur.