Opinion
33244.
DECIDED JANUARY 27, 1951.
Motion to set aside judgment; from Glascock Superior Court — Judge Perryman. May 27, 1950.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
J. Cecil Davis, Solicitor-General, contra.
1. "The fact that that portion of the verdict which fixed the term of punishment was written below the signature of the foreman does not invalidate the verdict. Simpson v. State,
34 Ga. App. 487 ( 130 S.E. 215); Heaton v. State, 37 Ga. App. 195 (4) ( 139 S.E. 103)." McKenzie v. State, 38 Ga. App. 200 (2) ( 143 S.E. 442).
2. The fact that the verdict recommended the term of punishment, instead of prescribing the punishment, does not vitiate the verdict. A substantial compliance with the statute is all that is required. Edwards v. State, 64 Ga. App. 266, 267 ( 13 S.E.2d 39).
3. The fact that the court, in sentencing the defendant, assigned him or ordered him delivered to the Prison Commission, which commission has been abolished, instead of assigning him or ordering him delivered to the State Board of Corrections, which board succeeded to the powers and duties of the commission, while not technically in the proper form, is not such an irregularity as is hurtful to any right of liberty, nor is it such a defect as to vitiate the sentence and deprive the defendant of due process of law under either the State or Federal Constitution. See, in this connection, Stewart v. Sanders, 199 Ga. 497(2) ( 34 S.E.2d 649); and, for the various acts creating the Prison Commission, changing its name, and conferring upon its successors the powers exercised by it, see the following: Ga. L. 1897, p. 71; Ga. L., 1937-38, Ex. Sess., p. 195; Ga. L., 1939, p. 106; Ga. L. 1941, p. 273; Ga. L. 1943, p. 210; Ga. L. 1946, p. 46.
From what has been ruled above, it follows that the trial court did not err in sustaining the general demurrers and in dismissing the motion to set aside the judgment, sentence, and verdict.
Judgment affirmed. Gardner and Townsend, JJ., concur.
DECIDED JANUARY 27, 1951.
Frank Dixon was convicted of voluntary manslaughter and given a sentence of from eight to ten years. Thereafter he filed a motion praying that the judgment and sentence be set aside, alleging that the same were void because the verdict fixed no minimum and maximum sentence; and that the sentence was a nullity because the judge therein ordered the defendant imprisoned as ordered by the Prison Commission of Georgia, whereas there is no such Prison Commission, the same having been abolished prior to the indictment of the defendant. The motion alleged that the movant had been deprived of rights guaranteed to him by the due-process clauses of the State and Federal Constitutions. The trial court sustained general demurrers filed to the motion by the State and dismissed the motion, and the defendant excepted, and brought a writ of error to the Supreme Court of Georgia. The Supreme Court, upon consideration of the bill of exceptions, held that the petition involved a mere application of unquestioned and unambiguous provisions of the Constitution to a given state of facts, and transferred the case to this court.
The motion to set aside the judgment is as follows: "Comes now Frank Dixon, defendant in the above-entitled cause, in open court, at this May term, 1950, and within 3 years after the judgment complained of was rendered, and files this his motion to set aside the judgment and sentence of court, rendered August 17, 1948, and for grounds thereof, showeth: 1. It appears from the face of record that no valid and sufficient judgment and sentence has been rendered in said case. 2. Reshows following fatal defects: (a) Jury found defendant guilty of voluntary manslaughter on August 17, 1947, and said verdict was duly dated and signed by the foreman. Jury did not fix any minimum and maximum sentence, and under said verdict, it was the legal duty of the trial judge to enter judgment and sentence against defendant for the minimum and maximum sentence required by law in cases of conviction of voluntary manslaughter, that is, to sentence defendant to serve not less than 1 year, nor more than 20 years; that the writing that the jury, or some other person other than the jury, placed after the verdict, which was neither dated nor signed, but which recommended a sentence from 8 to 10 years was not part of the verdict, was and is a nullity, and the court had no legal right to sentence and enter judgment and sentence against defendant except a sentence of not less than 1 year nor more than 20 years. (b) That the judgment and sentence is a nullity and wholly without legal force and effect, in that the court sentenced and entered judgment against defendant, provided that defendant be delivered to Prison on Commission of Georgia, and that he be imprisoned as the Prison Commission of Georgia may direct, etc., when as a matter of fact there was no Prison Commission of Georgia, as the Prison Commission of Georgia had been abolished some year prior to the indictment, trial and conviction of defendant. Copy of indictment including verdict and all entries thereon, is hereto attached, identified as Exhibit `A', and also judgment or sentence of court, identified as exhibit `B', both of said exhibits being made part hereof. 3. Said fatal defects appear on face of record and are not amendable. 4. Record shows upon its face that the trial court should have sentenced and entered judgment against defendant, giving him a sentence of not less than 1 year, nor more than 20 years, and that he be delivered to State Board of Corrections and imprisoned as directed by said Board, instead of the Prison Commission of Georgia. 5. That said sentence and judgment was and is a nullity as at time of indictment, trial and conviction of defendant, the Prison Commission of Georgia had long been abolished, and the sentence and judgment of court directing that defendant be delivered to Prison Commission of Georgia, and there imprisoned, as directed by said Prison Commission of Georgia, etc., is void and without binding force and effect. 6. Defendant has not been sentenced and judgment entered against him, in accordance with the law of the land, and he has been denied due process of law as guaranteed by Fourteenth Amendment to Constitution of United States. 7. That said judgment and sentence has no legal effect and is void and violative of fundamental principles of article 1, section 1, paragraph 3 of Constitution of State of Georgia, as embodied in Code Section 2-103, in violation of Fourteenth Amendment of Constitution of United States, as embodied in Code Section 1-815, which provides that no person shall be deprived of life, liberty or property, except by due process of law. 8. Defendant has been denied and is being denied the rights guaranteed to him as a citizen of United States, as embodied in Code Section 1-815; that his privileges and immunities have been and are being abridged, and he is being denied life and liberty and equal protection of the law, in that the sentence and judgment against him, as aforesaid, is void. . ."
The verdict, which is attached to the petition, appears thus: "We, the jury, find the defendant guilty of voluntary manslaughter. This 17 day of August, 1948. Cleon B. Wilcher, Foreman. And recommend a sentence from eight to ten years." The sentence, which is attached to the petition, is as follows: "Whereupon, it is adjudged by the court that the defendant, Frank Dixon, be remanded to common jail of Glascock County, and there safely kept till a guard shall be sent from the penitentiary of this State by the Prison Commission of Georgia, and then delivered to said Prison Commission and said defendant, Frank Dixon, being imprisoned in said penitentiary — at State Farm, or elsewhere in the State, as the Prison Commission of Georgia may direct, for and during the full term of eight years minimum and ten years maximum, to be computed from the date of his delivery to said Prison Commission and thence fully completed. . ."