52 Ga. App. 181 | Ga. Ct. App. | 1935
Lead Opinion
1. • The indictment charged the defendant with unlawfully shooting at another, but embraced the minor offense of an assault as denounced by the Code of 1933, § 26-1401, which is as follows: “An assault is an attempt to commit a violent injury upon the person of another.” The verdict was: “We, the jury, find' the defendant guilty of an assault and attempt, and give him one year.” This verdict is attacked as void for uncertainty. “ Verdicts shall have a reasonable intendment, and shall
2. When the jury found the defendant guilty of an assault (which is a misdemeanor), it was the province of the court alone to fix the punishment. When the jury undertook to fix the punishment, that part of the verdict was irregular, and the court should have so informed them and sent them to their room to correct it; but at most it was surplusage, and did not vitiate the verdict.. It still remained for the court to fix the punishment; and the court accordingly did so. The opinion of the jury did not control the court. The mere fact that the court made the punishment the same as that which the jury attempted to fix is immaterial. It can not be presumed that the court did not know the law. State v. Greer, 22 W. Va., 800; Harvey v. Commonwealth, 64 Va. 941; State v. Matthews, 191 N. C. 378 (2) (131 S. E. 743). There is no attack in this case on the judgment; the attack is on the verdict for uncertainty. The question whether the point can be raised in a motion for new trial is not presented by the record before us. But the result is the same whether we consider the point as being improperly raised or proceed to decide it; in either event the judgment is affirmed. The question of practice is doubtful. See Crow v. Crow, 134 Ga. 10 (67 S. E. 400); Smith v. State, 12 Ga. App. 667 (78 S. E. 134);
The evidence authorized the verdict.
Judgment affirmed.
Concurrence Opinion
concurring specially. The plaintiff in error in his motion for new trial complains that the verdict, “We, the jury, find the defendant guilty of assault and attempt, and give him one year,” “undertakes to find movant guilty of a crime not on the statute books of Georgia, that is ‘assault and attempt.’” In my opinion this question can be raised only by a motion in arrest of judgment or by a motion to set aside the judgment. It can not be raised by a motion for new trial. “A motion in arrest of judgment differs from a motion for a new trial in this: The former must be predicated on some defect which appears on the face of the record or pleadings, while the latter must be predicated on some extrinsic matter not so appearing.” (Italics mine.) Code of 1933, § 110-703. A motion in arrest of judgment is the “proper procedure where the verdict is for some offense not covered by the charge made in the indictment. As used in this connection, the expression ‘the face of the record’ means, in a criminal case, the indictment and the verdict; a defect on the face of the record exists when there is any inadequacy in the allegations, not cured by the verdict, or where the verdict does not conform to the charge in the indictment.” (Italics mine.) Spence v. State, 7 Ga. App. 825 (68 S. E. 443). See also the following cases where the question was raised by a motion in arrest of judgment: Couch v. State, 28 Ga. 367; Gibson v. State, 79 Ga. 344 (2); O’Connell v. State, 55 Ga. 191; Isom v. State, 83 Ga. 378 (9 S. E. 1051); Thomas v. State, 38 Ga. 117; Welch v. State, 50 Ga. 128 (15 Am. R. 690); Arnold v. State, 51 Ga. 144; Watson v. State, 116 Ga.