The defendant was convicted, on April 22, 1941, of the offense of operating an automobile while under the influence of intoxicating liquors. He permitted his motion for new trial to be dismissed in August, 1941, and advised the sheriff that he was ready to surrender. He was not then arrested, and the July term had passed. On January 20, 1942, he was arrested, and on February 7, 1942, he was sentenced by the court. Held, that his petition for habeas corpus, setting forth these facts, and claiming that the court had no authority to sentence him, was subject to general demurrer.
No. 14147. NOVEMBER 10, 1942. Glen Pace filed a petition for a writ of habeas corpus against M. E. Horton, sheriff of Floyd County, alleging that he was held in illegal restraint, for the reason that on the 22d day of April, 1941, he was convicted of operating an automobile while under the influence of intoxicating liquors; that on April 25, 1941, he filed a motion for new trial, and on August 23, 1941, he voluntarily permitted his motion to be dismissed, and through his counsel advised *Page 823 the sheriff of Floyd County that he was ready to surrender. He was not then and there arrested, and the July term of Floyd superior court passed without any sentence being imposed by the court. He contends that after the passage of the July term the court was without jurisdiction or authority to change and alter any sentence imposed upon him, and that under the conviction by the jury sentence started on August 23, as a suspended sentence. At the time the motion was dismissed the defendant offered himself as ready to begin serving the sentence, and the court did not defer the passage of sentence to a specific date, but left the matter "in abeyance as if the court's intention was to drop the entire matter and permit the defendant to start serving a suspended sentence." He says, that he has not violated the law with reference to a suspended sentence; and that the court is without authority and jurisdiction to hold him under said condition; and that "said sheriff is holding him on a pretended sentence to the chain-gang of said State, and that said pretended sentence is void and without legal effect for the reasons given above." It will be observed that he does not claim that the sheriff is holding him without sentence by the court, but is holding him on a pretended sentence, which he alleges is void.
The sheriff filed a demurrer on the ground that the petition set forth no reason for discharge of defendant, and showed that the petitioner never served the sentence imposed on him by the court, that no order suspending the sentence was ever passed, and that no illegal detention was shown by the allegations. The court sustained the demurrer, and the petitioner brought a writ of error to the Supreme Court, specifying in his bill of exceptions the sentence imposed on him on February 7, 1942, "after the sustaining of said demurrer." In Davis v. State, 192 Ga. 648 (16 S.E.2d 428), this court held: "Where a defendant is convicted of crime, and is not sentenced during the current term, and the failure or omission to pass sentence is not at the request or consent of the defendant, but, in the absence of any order or entry, is due altogether to the inaction or oversight of the court, the court, during the succeeding term or terms, does not lose jurisdiction of the *Page 824 case and the person of the defendant, so that the court may not cause the defendant to appear before the court during such subsequent term and be sentenced as if sentence were being passed during the term current with the trial." See O'Dwyer v.Kelly, 133 Ga. 824 (67 S.E. 106); Roberts v. Wansley,137 Ga. 439 (73 S.E. 654).
It may be true that the sheriff had no right to hold the defendant indefinitely for the imposition of a sentence. The bill of exceptions alleges that "the demurrer to the habeas-corpus petition was sustained after the imposition of the sentence," and the record shows that the sustaining of the demurrer and the imposition of the sentence were on February 7, 1942. However, the petition for habeas corpus was filed on the complaint that there was a pretended sentence by the court. But the record must be construed as meaning that the judge simultaneously imposed the sentence and signed the order on the demurrer. In addition, the plaintiff in his brief complains only that the court had no authority to sentence him.
The court correctly sustained the demurrer to the petition for writ of habeas corpus.
Judgment affirmed. All the Justice concur.