Opinion
16997.
MARCH 13, 1950. REHEARING DENIED MARCH 27, 1950.
Murder — refusal to commute sentence. Before Judge Nichols. Floyd Superior Court. November 28, 1949.
M. G. Hicks and C. T. Culbert, for plaintiff in error.
Eugene Cook, Attorney-General, John W. Davis, Solicitor-General, Frank B. Stow, Assistant Attorney-General, and Robert E. Andrews, contra.
Where a defendant is convicted on circumstantial evidence, the trial judge has no discretion to change a death sentence to life imprisonment, after adjournment of the term at which the original sentence was imposed, and after the judgment refusing the motion for new trial has been affirmed.
No. 16997. MARCH 13, 1950. REHEARING DENIED MARCH 27, 1950.
Freddie Parks, alias Fred Alexander, was indicted at the January term, 1946, of Floyd Superior Court, for the offense of murder. His case came on for trial in April, 1946, and the jury returned a verdict of guilty without a recommendation of mercy. Upon a review of the case in this court, the evidence, which was entirely circumstantial, was held to be insufficient to support the verdict, three Justices dissenting. Parks v. State, 202 Ga. 84 ( 42 S.E.2d 103). On April 29, 1947, another jury in Floyd Superior Court, on a second trial of the case, returned a verdict of guilty without a recommendation. On review in this court, the conviction was affirmed, one Justice dissenting. Parks v. State, 203 Ga. 302 ( 46 S.E.2d 504). Thereafter the defendant filed an extraordinary motion for new trial, based on newly discovered evidence, which motion was overruled by the trial judge, and the judgment was later affirmed by this court. Parks v. State, 204 Ga. 41 ( 48 S.E.2d 837). The defendant filed an application for commutation of sentence, with the State Board of Pardons and Paroles, which application was heard on September 23, 1948. On April 15, 1949, the board rendered a decision, denying commutation of sentence, by a vote of 2 to 1, the chairman voting for commutation.
On November 28, 1949, the defendant filed a petition with the Judge of the Superior Court of Floyd County, denominated as his "application and motion for commutation of sentence." He recited the facts concerning the judicial proceedings above enumerated and the action of the State Board of Pardons and Paroles. In this motion the following contentions were made: To permit the execution of the defendant by electrocution under the verdict of the jury, would deny the defendant due process, guaranteed under the State and Federal Constitutions, because the act of 1943 (Ga. L. 1943, pp. 185, 187), creating the State Board of Pardons and Paroles, provides that, "in all cases of clemency, pardons and paroles, a majority vote of the members is sufficient for approval, except in cases involving capital punishment, and in such cases a unanimous vote of all members of the Board is necessary"; and the vote denying him clemency was not unanimous. The action of the State Board of Pardons and Paroles was not within the time required under section 11 of the act of 1943, creating the board, and was therefore illegal and contrary to law, and deprived the defendant of due process of law. The evidence on both trials of his case was wholly circumstantial, and no jury had an opportunity to review, analyze, or evaluate the evidence submitted in his extraordinary motion for new trial. The case is still in the breast of the trial court, and the court should exercise its discretion as provided in the Code, § 26-1005, where a conviction is obtained wholly upon circumstantial evidence, and commute the defendant's sentence from death to life imprisonment. The prayers of the motion were: "Wherefore, the defendant prays that all the facts and circumstances surrounding his arrest, trial and conviction be reviewed and considered by the court and that the trial judge be instructed by the Supreme Court to exercise the authority and discretion vested in him by law, and that said sentence be commuted to life imprisonment."
On presentation of the application to Honorable H. E. Nichols, Judge of Floyd Superior Court, Judge Nichols denied the application, with the pronouncement that in his opinion he was at that time without jurisdiction to commute the sentence from death to life imprisonment. Error is assigned on this ruling of the trial court.
"A person convicted of a capital offense is never sentenced under the law of this State but one time; the sentence is the conclusion of the record, and once entered, the record is complete. It may be that the time fixed in the sentence expires, but the sentence stands in full force. . . What is commonly referred to as a resentence is only the fixing of a new time for the execution of a sentence." Baughn v. State, 100 Ga. 554, 558 ( 28 S.E. 68); Mallory v. Chapman, 158 Ga. 228, 231 ( 122 S.E. 884); Gore v. Humphries, 163 Ga. 106, 111 ( 135 S.E. 481); Benton v. State, 187 Ga. 149, 155 ( 199 S.E. 749); Smith v. Henderson, 190 Ga. 886 (1 0 S.E.2d 921); Fowler v. Grimes, 198 Ga. 84, 94 ( 31 S.E.2d 174); Solesbee v. Balkcom, 205 Ga. 122, 125 ( 52 S.E.2d 433) (affirmed by the Supreme Court of the United States on February 20, 1950, Solesbee v. Balkcom, 339 U.S. — ( 70 Sup. Ct. 457); Code, §§ 27-2518, 27-2521.
In Fowler v. Grimes, supra, it was stated: "Moreover, even if the case had been such that he [the trial judge] would have had a discretion originally, he could not have changed the sentence from one of death to one of life imprisonment after adjournment of the term at which the original sentence was imposed, and after the judgment refusing the motion for a new trial had been affirmed."
In the present case the defendant had been convicted of murder without a recommendation of mercy by the jury, and although the evidence in the case was circumstantial, the trial judge presiding at the time exercised the discretion given him under the Code, § 26-1005 by refusing to grant the defendant mercy; the defendant's conviction was affirmed by this court, and thereafter the refusal of the trial judge to grant an extraordinary motion for new trial was affirmed by this court. There is no longer any discretion vested in the trial judge to commute the defendant's death sentence to that of life imprisonment.
Counsel for the defendant cite Jackson v. State, 53 Ga. 195, 199, and Marshall v. State, 74 Ga. 26, 33. In the Jackson case it was held: "We affirm the judgment, though we will direct that the judge resentence the prisoner, and in so doing, exercise the discretion vested in him by law in cases where the conviction is founded solely on circumstantial evidence. We do not suggest what his sentence shall be, but we leave it open to the judge, now that some time has elapsed, to commute the punishment if, as his conscience is at present informed, he thinks that course most consistent with justice, the public interest, the fallibility of human belief, and such charity as is consistent with justice." The Marshall case followed the Jackson case, stating that in the Jackson case this court "directed the judge to resentence the prisoner." In Colbert v. State, 91 Ga. 705, 711 ( 17 S.E. 840), the Jackson and Marshall cases were cited as authority for the court to give direction that the trial judge reconsider the sentence of a defendant. It is apparent from a consideration of the cases cited by counsel that this court was giving special directions to the trial judge to resentence the defendants, under authority of the Code (now §§ 6-1610, 24-3901 (2)), due to the particular facts of the cases. These cases are not authority for a ruling that, where the evidence was circumstantial, the judge in setting a new date for the execution of a death sentence would have a discretion to commute the death penalty to life imprisonment. No direction was given by this court in the affirmance of the conviction of the present defendant that the trial judge resentence the defendant, and the judge who presided on the trial of the case set a new date for the execution of the defendant's sentence after the affirmance of his conviction by this court.
The judges of the superior courts of this State have no general jurisdiction to commute death sentences to life imprisonment. Our Constitution has vested this power in the State Board of Pardons and Paroles. Constitution, art. 5, sec. 1, par. 11 (Code, Ann., § 2-3011). The record under consideration discloses that the defendant made application to the State Board of Pardons and Paroles for a commutation of his sentence, which was denied. He attempts to raise a question as to a delay by the board in acting on his application. Obviously, any failure of the board to act on the application in the time provided by law would not give authority to the Judge of the Superior Court of Floyd County to commute the defendant's sentence.
The contention that the execution of the defendant under the verdict of the jury would be denying him due process, since one member of the Board of Pardons and Paroles voted to commute his sentence, is without merit. The language in the act creating the State Board of Pardons and Paroles (Ga. L. 1943, pp. 185, 187, Code, Ann. Supp., § 77-511), that "in cases involving capital punishment . . a unanimous vote of all members of the Board is necessary," means that a unanimous vote is necessary to grant clemency, and not that a unanimous vote is necessary to deny clemency. The courts have the power to impose punishment; the pardon and parole board has the power to grant mercy. The action of the Board of Pardons and Paroles is not an approval or disapproval of the judgment of the trial court.
The trial judge did not err in holding that he was without jurisdiction to entertain the motion for a commutation of sentence.
Judgment affirmed. All Justices concur.