1. Where a defendant in 1937, after conviction of the offense of abandonment, was sentenced to serve a term of twelve months on the public works, and on the same day an order was passed "suspending" the sentence on stated conditions, the order of suspension was void.
2. Where after such suspension order the court entered another order revoking the suspension, and the defendant was then taken into custody and served a part of the sentence imposed, but was thereafter again released under a suspension order of the same character, and subsequently that order was also revoked and the defendant was then ordered *Page 131 to serve the sentence originally imposed, such defendant was not entitled to be discharged on a writ of habeas corpus, although more than twelve months had elapsed since the imposition of the original sentence.
3. The case is not altered by the additional facts that in each of the orders "suspending" sentence the defendant was required to pay a stated sum weekly for the support of his minor children "through the adult probation office," and was thereby or in some other manner "referred to the adult probation officer," that the suspension orders were revoked on the request of the probation officer, and that such has been the practice of the court for a long time in abandonment cases.
4. The court erred in ordering the defendant discharged on his application for a writ of habeas corpus.
No. 14547. JUNE 10, 1943. This is a habeas corpus case, in which a judge of the superior court of Fulton County ordered and adjudged that the petitioner J. M. Carlan be released and discharged from the custody of A. A. Clarke, warden. The warden, who had filed response resisting the application, excepted. The application for the writ was filed on March 8, 1943, and from evidence on the hearing the following facts appeared: On August 16, 1937, J. M. Carlan was convicted in the criminal court of Fulton County of the offense of abandoning his minor children, and was sentenced to "be put to work and labor on the public works of the County of Fulton, or otherwise, for the space of twelve (12) months, to be computed from the date of his sentence." On the same day the judge passed a separate order, providing: "that the above sentence be and the same is hereby suspended in the discretion of the court, upon the condition that the said defendant pay the sum of $15 each week through the Adult Probation Office for the support of his minor children. Defendant shall not move his place of abode without first notifying the Probation Officer; moving without notice violates this order." On November 8, 1940, the same judge passed an order, referring to the above sentence and suspension order, and providing: "It now appearing that the said J. M. Carlan has violated the conditions of said order, and a hearing having been had, it is now considered, ordered, and adjudged that the order suspending sentence be and the same is hereby revoked, and it is ordered that the sheriff of Fulton County deliver the said J. M. Carlan to the warden of the public works of Fulton County, to serve the sentence of twelve months as originally imposed." On March 13, 1941, the judge ordered "that *Page 132 the remainder of the said sentence of twelve months be and the same is hereby suspended," upon the same conditions as specified in the order of August 16, 1937. On February 4, 1943, the judge entered an order identical in terms with that of November 8, 1940, again revoking suspension. It appeared also that the applicant had not served the full term of the original sentence, unless it is to be treated as a probation sentence, so that he might serve it outside the confines of chain-gang or place of public works. The bill of exceptions and record were filed in the clerk's office on March 29, 1943. On April 23, counsel filed here the following "agreed stipulation of facts."
"Now comes Lindley W. Camp, counsel for the plaintiff in error, and W. George Thomas, counsel for the defendant in error, and respectfully request the court to consider this agreed stipulation of facts in the within-stated case:
"Counsel agree and admit that the defendant in error, J. M. Carlan, was accused, tried, convicted, and sentenced by the Honorable Jesse M. Wood, August 16, 1937, for the offense of abandonment. It is further stipulated that the judge, in passing sentence, suspended the sentence and referred the defendant in error to the Adult Probation Officer of Fulton County, and that when the court revoked the sentence he did so upon the request of the Probation Officer after notice and hearing to the defendant in error; and when the court released the defendant in error upon the subsequent orders, that the sentence and terms were the same as the original sentence and orders, to wit: Sentence suspended and the defendant was referred to the Probation Officer. It is further stipulated that this has been the custom of the court in meeting out sentences in abandonment cases for a long period of time. It is further agreed between counsel that this stipulation be made part of the record in this honorable court."
In the brief for the defendant in error it is stated that "the sole issue to be determined in this case, where a person has been charged with the offense of abandonment and is guilty, either by plea or judgment, and the sentence is suspended, but the defendant is referred to the probation office, is this not in effect a probated sentence?" In Aldredge v. Potts, 187 Ga. 290 (200 S.E. 113), it was held: "Where one who entered a plea of guilty to a charge of abandonment, and was sentenced to serve twelve months on the public works, was released from custody on the same day he was sentenced, upon a void order suspending the sentence at the discretion of the court, and this order of suspension was revoked, and later another order revoking the revoking order caused the defendant to be released after having served only a part of his sentence, and subsequently another order of the same court, revoking the last order and directing that the defendant serve the remainder of his sentence, was passed at a date more than twelve months after the date of the sentence, and thereupon the defendant was again taken into custody to serve the remainder of his sentence, he was not entitled to discharge on habeas corpus on the ground that the term of service had expired, and that the order of revocation was void." It has been held several times by this court that a judge has no authority to suspend execution of a sentence imposed in a criminal case, except as incidental 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); Wall v. Jones, 135 Ga. 425 (69 S.E. 548); Conley v. Pope, 161 Ga. 462 (4) (131 S.E. 168);Smith v. Jackson, 164 Ga. 188 (138 S.E. 52); Wimbish v.Reece, 170 Ga. 64 (152 S.E. 97). By section 1 of act approved August 16, 1913, it was declared that "In all prosecutions for crime, except as hereinafter provided, where the defendant has been convicted either upon a trial or upon his plea, where the court has power to sentence such defendant to the chain-gang, jail or other place of detention in this State, where it appears to the satisfaction of the court that the circumstances of the case and the public good does not demand or require the defendant's incarceration, said court may mold its sentence so as to allow the defendant to serve same outside the confines of the chain-gang, jail or other place of detention, under the supervision of the court, and in such manner and on such conditions as he may see fit, giving the reasons therefor, which shall be made part of the record." Code, § 27-2702. But it has also been held that this statute does not apply to a "suspended" sentence. Kemp v. Meads, 162 Ga. 55 (132 S.E. 533); Crosby v. Courson, 181 Ga. 475 (182 S.E. 590);Avery v. State, 22 Ga. App. 746 (2) (97 S.E. 204). *Page 134
By section 2 of the act approved March 24, 1933, it was provided that "In all criminal cases in which the defendant shall be found guilty or in which a plea of guilty shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended, such provision shall have the effect of placing such defendant on probation as provided in" the act of 1913, supra. However, this act expressly excluded from its operation "cases arising under any action for abandonment or bastardy," and the applicant here was convicted of abandonment. Ga. L. 1933, p. 266, Code, § 27-2706.
The sentence in Aldredge v. Potts, supra, and the order suspending it, were entered on September 30, 1932, while the sentence and suspension order in the instant case were dated August 16, 1937, nearly five years later. It appears from agreed stipulation, as quoted in the statement, that "this practice [of suspending sentences] has been the custom of the court in meeting out sentences in abandonment cases for a long period of time." InAldredge v. Potts, it was ruled that such orders suspending sentences were void. It may be that the ruling in that case resulted in enactment of the law approved March 27, 1941, Ga. L. 1941, p. 481, Code Ann. 1941, § 27-2707, providing: "In all prosecutions for the offense of abandonment . ., where the defendant has been convicted . ., the court passing sentence upon such defendant may suspend such sentence in its discretion, upon terms providing for the support and maintenance of the child or children abandoned, . . and by order refer such cases to the county probation officer, who is hereby authorized and empowered to supervise and enforce the terms provided in such suspended sentence for the support and maintenance of the child or children abandoned . ., during the terms of the suspended sentence. . ." But this statute does not purport to be retroactive, and can not be construed as applying to the sentence here involved. Code, § 102-104; Walker County Fertilizer Co. v. Napier, 184 Ga. 861 (2) (193 S.E. 770); United States Fidelity Guaranty Co. v. Toombs County, 187 Ga. 544 (3) (1 S.E.2d 411); Crosby v. Courson, 181 Ga. 475, 477 (8) (182 S.E. 590). The terms of the orders suspending sentences in the present case and inAldredge v. Potts were the same. Each provided for suspension in the discretion of the court, upon condition that the defendant pay a stated sum "through the adult probation office" for *Page 135 the support of his minor child or children; that the defendant should not move his place of abode without notifying the probation officer; and that moving without notice would violate the order. The order did not in either case purport to allow the defendant to serve the sentence outside of the place of service designated, but suspended the sentence on conditions specified. On the record, therefore, the cases are absolutely identical, except for a difference in dates, names, remainder of time to be served, and similar matters.
It is shown in the stipulation, however, that the defendant here "was referred to the probation officer," that the suspension orders were revoked on request of that officer after notice and hearing, and that "this has been the custom of the court in . . abandonment cases for a long period of time." We might say first that this agreed statement could not so alter the case as made by the record as to require a different result in this court.Farmers Bank of Doerun v. Avery, 145 Ga. 449 (89 S.E. 409); Renfroe v. Butts, 192 Ga. 720 (2) (16 S.E.2d 551);Grace v. Interstate Bond Co., 193 Ga. 810 (20 S.E.2d 131). But even aside from this, the statement does not show that the original sentence or the suspension order passed in connection therewith was in word or letter different from what has been quoted from the record; and hence the fact that the defendant "was referred to the probation officer" can not be taken as showing a different sentence from that imposed in thePotts case. Moreover, the fact that the defendant was referred to the probation officer, however this may have been done, did not convert the sentence into a probation sentence any more than was done in the Potts case by the requirement, common to both cases, that the defendant pay a stated sum weekly "through the adult probation office." Nor is it material that the suspension was revoked on request of the probation officer, and that this case was handled by the court according to a custom that had existed for a long period of time. Accordingly, there is nothing to distinguish the instant case from the Potts case, and under the decision in that case the judge erred in ordering the applicant's discharge. The request to review and overrule the decision in the Potts case is denied.
In Dixon v. Beaty, 188 Ga. 689, 690 (4 S.E.2d 633), it was said that the decisions in Etheridge v. Poston,176 Ga. 388 (2) (168 S.E. 25), and Crosby v. Courson,181 Ga. 475 (5) (182 S. *Page 135 136 F. 590), "so far as they refer to an offer to begin service, contemplate an offer consistent with valid terms of sentence, and with law." The conclusion here accords with the rulings inRoper v. Mallard, 193 Ga. 684 (19 S.E.2d 525).
Judgment reversed. All the Justices concur. *Page 136