McBURNETT v. STATE, 206 Ga. 841 (1950)

59 S.E.2d 374

McBURNETT v. THE STATE.

17054.Supreme Court of Georgia.
MAY 8, 1950.

ALMAND, Justice.

The ruling of this court in Parks, alias Alexander, v. State, 206 Ga. 675 (58 S.E.2d 142), controls in every essential detail the questions raised in the case at bar, and requires that the judgment of the trial court be, and it is hereby.

Affirmed. All the Justices concur.

No. 17054. MAY 8, 1950.
Murder; motion to set aside sentence. Before Judge Nichols. Floyd Superior Court. January 20, 1950.

Vester McBurnett was tried and found guilty, on January 20, 1949, of murder and sentenced to death by electrocution. Thereafter, on June 7, 1949, his motion for a new trial as amended was overruled, and on October 11, 1949, his sentence and conviction were affirmed by this court. 206 Ga. 59 (55 S.E.2d 598).

Page 842

Thereafter, McBurnett presented to the State Board of Pardons and Paroles his application for a commutation of sentence from death to life imprisonment; and on January 5, 1950, said board entered an order refusing to commute said sentence, two of the members of the board voting against commutation and one for commutation. On January 20, 1950, the trial judge set a new date for carrying out the sentence by electrocution. On January 26, 1950, McBurnett presented to the trial judge an application to set aside the “sentence” imposed by the court on January 20. It was contended that the order passed by the State Board of Pardons and Paroles, denying his application for commutation of sentence by a vote of two to one, violated McBurnett’s rights under the Constitution of the State of Georgia and the Federal Constitution in that said order, as well as the order of the trial court sentencing the defendant to death, denied to him due process of law. The motion to set aside the sentence being denied, McBurnett brought the case to this court by writ of error assigning error on such denial.

Hicks Culbert, for plaintiff in error.

W. T. Maddox, Solicitor-General, contra.