40 Ga. App. 228 | Ga. Ct. App. | 1929
In this case the indictment, which was for as■sault with intent to murder, made no reference to a former conviction of the accused, although he had previously been convicted in Eult'on superior court of robbery and also of bringing into this State a stolen automobile, and in the former case was sentenced to serve from four to five years and in the latter case from three to five years in the penitentiary. The punishment for assault with intent to murder is from two to ten years, which is different from the punishment that is prescribed for either of the felonies for which the accused has been convicted. In Tribble v. State, 168 Ga. 699 (3, a) (148 S. E. 595), it was held: “The fact of a former conviction and sentence must be charged in the indictment, where a second conviction would affect the grade of the offense or require the imposition of a different punishment. McWhorter v. State, 118 Ga. 55 (44 S. E. 873). . . By the act of August 18, 1916 (Acts 1916, p. 154; 11 Park’s Code Supp. 1922, § 183-1/2), the larceny of the automobile was made a felony; and any person convicted of this offense js punishable by imprisonment in the penitentiary for a time not longer than five years nor less than one year. By section 1068 of the Penal Code, any person, upon second conviction
Judgment reversed.