148 Ga. 406 | Ga. | 1918
D. S. Martin was indicted for distilling whisky in violation of section 23' of the act of the General Assembly approved March 28, 1911. Acts 1911, Ex. Sess., p. 1. This section provides that “any person, firm, or corporation, who shall, within this State, distill, manufacture, or make any alcoholic, spirituous, vinous, malted, or mixed liquors or beverages, any part of which is alcoholic, shall be guilty of a felony and upon conviction therefor be punished by confinement and labor in the penitentiary for not less than one year nor longer than five years.” The defendant was convicted, with recommendation to the mercy of the court. He was sentenced as for a misdemeanor. He made a motion for new trial, which' was overruled by the court, and he excepted.
1. Two stills were found on lands of the accused, and a short distance from his home. Witnesses followed a wagon track from
'8. Complaint is made of the following charge to the jury: “I read yon from the law itself what the punishment prescribed by statute is of any one convicted of the offense charged under this indictment, that is, confinement in the penitentiary for not less than one nor more than five years. I charge you, however, that this is one of a class of felonies that may be reduced to a misdemeanor, that is to say, if the jury should believe the defendant guilty beyond a reasonable doubt, and should so find by their verdict, they can reeommend him to the mercy of the court, and should the recommendation be approved by the court he would be punished as for a misdemeanor.” The error assigned is that the offense charged in the indictment is not a reducible felony. Section 1068 of the Penal Code is as follows: “All felonies, except treason,
3. Several excerpts from the charge of the court are excepted to; but upon examination none of the assignments of error thereon show cause for reversal. The evidence authorized the verdict, and the judgment of the court in overruling the motion for new trial is therefore Affirmed.