48 Ga. 116 | Ga. | 1873
The defendant was indicted for the offense of arson, and-charged with burning an occupied dwelling house, the same not being in a city, town or village. On the trial of the defendant, the found a verdict of and recommended *him to the mercy of the Court. A motion was made for a new trial, on the several grounds set forth in the record, which the Court overruled, and the defendant excepted. There was no error in overruling the motion for a continuance of the case.
6. In the case of Stallings vs. The State, 47th Georgia Reports, 572, this Court held that it was the duty of the Court below to have charged the jury, where a defendant was indicted for arson, under the 4311th section of the Code, that they could, by their verdict, if they saw proper to do so, recommend that the defendant be punished by imprisonment in the penitentiary for life, and if they had so recommended, then it would have been the duty of the Court to have commuted the penalty of death, in accordance with such recommendation. The charge of the Court to the jury in this case, is not fully set forth in the record, but we are bound to presume that the Court charged the law correctly in relation to that point in the case, and if it did, the verdict is an illegal verdict. If the jury intended by recommending the prisoner to the mercy of the Court in their verdict, that the penalty of death should be commuted to imprisonment for life in the penitentiary, then their verdict is not a legal verdict for that purpose, and the Court cannot commute the punishment under
Let the judgment of the Court below be reversed, and a new trial ordered.