58 Ga. App. 472 | Ga. Ct. App. | 1938
Lead Opinion
The jury found the defendant guilty of robbery under each of the four counts contained in the indictment, fixed his punishment under each count at not less than five nor more than seven years, and found further that “all above sentences to be served consecutively, and not concurrently.” In this court the defendant expressly abandons the general grounds of the motion for new trial, and all special grounds except ground 4, which complains of the failure of the court to charge the jury, without request, that robbery was a reducible felony, and that it was their privilege to recommend that the defendant be punished as for a misdemeanor. We will consider the case without reference to the act of 1937 (Ga. L. 1937, p. 490), the case having been tried, and counsel for both parties having presented the case here; without reference thereto. “Robbery by open force or violence shall be punished by imprisonment and labor in the penitentiary' for not less than four years nor more than twenty years.” Code, § 26-2502. “Robbery by intimidation, or without using force and violence, shall be punished by imprisonment and labor. in the penitentiary for not less than two years nor more than twenty years.” § 26-2503. “All felonies, except treason, insurrection, murder, manslaughter, assault with intent to rape, rape, sodomy, foeticide, mayhem, seduction, arson, burning railroad bridges, train wrecking, destroying, injuring, or obstructing railroads, perjury,
Counsel for the defendant states in his brief that the evidence authorized a conviction on count 1 for robbery by force, and on the three remaining counts for robbery by intimidation. Accepting this as true, as to count 1 the jury were authorized to punish the defendant by imprisonment and labor in the penitentiary for not less than four years, and not more than twenty years; as to the other - counts, for not less than two and not more than twenty years. Upon each count the jury directed that the defendant serve from five to seven years; and further provided, although they were not so charged, that the sentences were to run consecutively. As to none of the counts did the jury see fit to exercise their right- to give the defendant the minimum sentence as given them in charge. What right have we to say, and upon what logic would we proceed, in holding that in such a case, if the jury had been informed that they could recommend the defendant to be punished as for a misdemeanor, they might have done so? If by their verdict it affirmatively appears that they would not have done so, then the failure of the judge to so charge can not require a new trial. A recommendation by a jury, in the trial of a felony, that the defendant be punished as for a misdemeanor would result only where, though they be satisfied of the defendant’s guilt beyond a reasonable doubt, yet, by reason of some
The cases of Harris v. State, 150 Ga. 680 (104 S. E. 902), Moore v. State, 26 Ga. App. 21 (105 S. E. 621), Johnson v. State, 100 Ga. 78 (25 S. E. 940), Taylor v. State, 110 Ga. 151 (10) (36 S. E. 161), and Glover v. State, 7 Ga. App. 628 (3) (67 S. E. 687), are clearly distinguishable from the present case. The Johnson, Taylor and Glover cases were all tried before the indeterminate-sentence act was passed, and the verdict in each case was simply one of "guilty.” In the Harris case, as appears from the record and the certified question, the defendant, as in Thompson v. State, 151 Ga. 328 (106 S. E. 278), s. c. 25 Ga. App. 483 (103 S. E. 731), was actually given the minimum sentence provided for the offense charged. From what we have said we are of the opinion that the trial judge did not err in overruling the motion for new trial.
Judgment affirmed.
Concurrence Opinion
concurring specially. I concur because I am bound by the decision in Daniel v. State, 24 Ga. App. 557 (101