10988 | Ga. Ct. App. | Dec 9, 1919
1. The court properly overruled the demurrer to the indictment. See, in this connection, Blackmon v. State, 24 Ga. App. 384 (100 S.E. 730" date_filed="1919-11-06" court="Ga. Ct. App." case_name="Blackmon v. State">100 S. E. 730).
2. Conceding, but not deciding, that the court erred in refusing to charge section 1062 of the Penal Code of 1910, and in failing to instruct the jury that if they found the defendant guilty of burglary they had a right to recommend that he be punished as for a misdemeanor, this error was evidently harmless, since the jury in their verdict (under the indeterminate sentence act approved August 18, 1919, Ga. L. 1919, p. 387), fixed the minimum punishment of the defendant at ten years in the penitentiary when they could have fixed it at one year only. This verdict clearly shows that even if the requested charge had been given, the jury would not have recommended a misdemeanor punishment for the defendant.
3. The other special grounds of the motion for a new trial are not argued in the brief of counsel for the plaintiff in error, and are treated as abandoned.
4. The verdict amply authorized, if it did not demand, the defendant’s conviction of the offense charged, and the court did not err in denying a new trial.
Judgment affirmed.