McLarry v. State

35 S.E.2d 378 | Ga. Ct. App. | 1945

Under the law as it now exists, where two or more indictments against an accused are, by consent of the State and of the accused, submitted to the same jury for trial, and where the jury return verdicts of guilty on two or more of such indictments it is their duty to fix a minimum and a maximum term of years; they have no authority to determine that such verdicts may run concurrently rather than consecutively, and the judge does not err in failing to instruct the jury that they may so decide.

DECIDED SEPTEMBER 19, 1945. REHEARING DENIED SEPTEMBER 29, 1945. Five separate indictments for larceny after trust were returned against the defendant. The amount in each indictment was alleged to be over $50, and the offense a felony. By agreement of counsel for the State and the accused, the issues joined on the five indictments were submitted to the same jury at the same time. The jury were instructed by the trial judge to return a separate verdict in each case. The jury did this, finding the defendant guilty on each indictment, and fixing his sentence in each verdict at not less than one year and not more than two years. Counsel for the accused duly requested the trial court to charge the jury that they would have the right if they found him guilty on two or more of such indictments, to further specify whether the sentences should run consecutively or concurrently. The court refused this request. After the verdicts were received, the court sentenced the accused on each indictment to serve not less than one nor more than two years, the sentences to run consecutively and not concurrently. The defendant filed in each case a motion in arrest of judgment, and a motion for a new trial. The motions in arrest were submitted upon an agreed statement of facts. The motions for new trial were duly presented with a brief of evidence, charge of the court, etc. The court overruled both the motions in arrest and the motions for new trial. The defendant assigns error on each of such judgments. The questions raised by all of the exceptions on each of the five indictments are identical. Those questions are: Did the court, in a situation such as above outlined, commit error in refusing to permit the jury to say whether or not the sentences might be served concurrently rather than consecutively, and did the court err in sentencing the defendant to serve the sentences consecutively rather than concurrently, in the absence of a recommendation thereof by the jury? The indeterminate sentence act of 1939 here involved is contained in Code, § 27-2526 (Ann.), as follows: "The jury in their verdict on the trial of all cases of felonies not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as a punishment for said crime, and the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury: Provided that in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit." It is our opinion that under this section the jury has no such authority as is contended by able counsel for the accused.

It is further contended by counsel for the plaintiff in error that § 27-2510 of the Code was repealed by the act of 1939 (Ga. L. 1939, pp. 285, 287). The Code, § 27-2510, reads as follows: "Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence and the length of its duration. (Cobb, 836)." With this contention we can not agree. The two sections above set forth are not in conflict. The act of 1939, therefore, did not either expressly or by implication repeal section 27-2510. So far as we are able to find from our own research or so far as counsel for both parties have cited us, the question here presented has not before been passed upon by the appellate courts of this State.

The court did not err in overruling the motion for a new trial and the motion in arrest of judgment in the instant case for any of the reasons assigned.

Judgments affirmed. Broyles, C. J., and MacIntyre, J.,concur.