26 S.E.2d 736 | Ga. | 1943
1. In this trial on an indictment for robbery by force, the court did not err in failing to charge that the jury could recommend punishment as for a misdemeanor, since sec. 2 of the act of 1939 (Ga. L. 1939, pp. 285 287; Code Supp. § 27-2525), authorizing in some felony cases such a recommendation, which the judge may follow if he "sees proper" in fixing the punishment, expressly excepts certain named felonies that can not be so reduced, and "robbery by force" is included among the stated exceptions. As to felonies reducible to a misdemeanor, sec. 2 of the act of 1939 was controlling, in the absence of any sufficient attack in the trial court on constitutional grounds. Since the record shows no attack in the court below on the constitutionality of that section, and the only attack, made for the first time, is by brief of counsel in this court, no constitutional question is presented or decided.
2. Sec. 1 of said act of 1939 "repealed in its entirety" the act of 1938 (Ga. L. Ex. Sess. 1937-1938, p. 326), which purported to vest in the judges the sole right to fix the punishment under criminal statutes, and to limit juries to the right to pass only on the question of guilt or innocence. While sec. 3 of the later act provides that "the jury in their verdict . . shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as a punishment," and that "the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury," except that the judge may prescribe the minimum and maximum term "in cases of pleas of guilty," these provisions of sec. 3, by express limitation therein, apply only to trials for "felonies not punishable by life imprisonment." Code Supp. § 27-2526. Since robbery by force is one of the felonies that are "punishable by life imprisonment" among other penalties (Ga. L. 1937, pp. 490, 491; Code Supp. § 26-2502), it falls within the exception stated. Accordingly, the duty or discretion of the jury and judge respectively with regard to punishment in a trial for robbery by force must be determined under the particular robbery statute, without modification by the act of 1939.
3. The act of 1937 (Code Supp. § 26-2502) provides that robbery by force "shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than 4 years nor longer than 20 years, in the discretion of the court." Where the jury thus recommends mercy by recommending imprisonment within the *137 4 and 20 years periods, the judge by the terms of the act has a "discretion" as to whether he will follow that recommendation or impose life imprisonment. If he does follow the recommendation rather than impose life imprisonment, he must impose the particular sentence recommended by the jury. The language of the statute does not permit the imposition of the death penalty despite a recommendation to mercy.
4. Although a portion of the instructions to the jury correctly charged the preceding rules, another portion charged, without any immediate qualification, that if the jury should fix the punishment at "not less than four years and not more than four years, . . that would be the sentence of the court." This was reversible error, since it was likely to have misled or confused the jury and influenced the finding of the verdict as made, with a recommendation that the sentence imposed be not less than four nor more than four years, whereas the court imposed a sentence of life imprisonment.
The exception to this charge is that it was "confusing to the jury;" that it caused them "to believe that the terms of years recommended by the jury would be the judgment of the court," and if the jury so recommended within the limits prescribed by the statute, their verdict would be the sentence imposed by the court; and that the jury, so believing, returned a verdict of guilty for the four years minimum, but the court imposed life imprisonment.
Immediately following the instructions above quoted, and after charging the jury as to the forms of a verdict of guilty that they might render — first as to a verdict of guilty without a recommendation to mercy, next as to a verdict of guilty with a general recommendation to mercy as meaning life imprisonment, — the court charged as follows: "If you return this form of verdict: `We, the jury, find the defendant . . guilty . . and recommend him *139 to mercy, and we recommend that he be punished by confinement in the penitentiary for not less than so much time and not more than so much time in the penitentiary,' that would mean that if the court approved that last recommendation the defendant would be sentenced to imprisonment in the penitentiary for a term of years or term of punishment within the limits of not less than four years and not more than twenty years, as fixed by you in your verdict. If the court approves that recommendation, it would be the duty of the court to impose the term of punishment fixed by you in your verdict. The court can approve your last recommendation and impose the term of years fixed by you, or the court would have the right to disapprove that recommendation and sentence the defendant to imprisonment in the penitentiary for and during the remainder of his natural life."
In view of the reversal of the judgment on a special ground, the evidence and the statement of the defendant are not set forth.
1. The special grounds raise questions that involve a proper construction of the robbery by force statute of 1937 (Code Supp. § 26-2502), a construction of the act of 1939 (Code Supp. §§ 27-2525, 27-2526) relative to the respective powers of judge and jury in the imposition of punishment, and the effect of the later general act on the particular robbery statute. As the law now exists, under the robbery by force act of 1937, the alternative penalties imposed are: death if the jury fail to recommend mercy; life imprisonment if the jury make a general recommendation of mercy; or imprisonment for terms from 4 to 20 years, as the jury may recommend, "in the discretion of the court." The original Code section 27-2501 (Ga. L. 1895, p. 63) made all felonies, with certain specified exceptions, punishable by imprisonment in the penitentiary for the terms specified in the particular criminal statutes, except that "on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crimes shall be punished as misdemeanors;" and that "if the judge trying the case sees proper, he may, in fixing the punishment, reduce such felonies to misdemeanors." This section as enacted and as codified did not include "robbery *140
by force" among the expressly excepted felonies which were not reducible to a misdemeanor on recommendation of the jury when approved by the judge, or by the judge on his own initiative. See, as to the reducibility of the punishment for robbery by force under the original law, Anderson v. State,
"Since a statute is presumed to be valid and constitutional until the contrary appears, and cannot be lawfully set aside by the courts unless the alleged conflict with the constitution is plain and palpable, the burden is upon any party who assails it to present his attack in clear and definite terms, in order to call forth judicial action concerning it." Abel v. State,
2. Following sec. 1 of the act of 1939 which expressly repealed in its entirety the act of 1938 (Ga. L. Ex. Sess. 1937-1938, p. 326), vesting in judges instead of juries the power to fix or recommend punishment in criminal trials, and following sec. 2 of the act of 1939, relating to the reduction of all save certain expressly excepted felonies to misdemeanors, sec. 3 of the act provides: "That from and after the passage of this Act the jury in their verdict on the trial of all cases of feloniesnot 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." However, under the express exception quoted, that this section shall not apply save to "felonies not punishable by life imprisonment," sec. 3 does not in any wise affect the respective rights and powers of the judge and jury in a trial for robbery by force, since, under the act of 1937 providing its punishment (Ga. L. 1937, pp. 490, 491; Code Supp. § 26-2502), such a felony is punishable by life imprisonment, among other penalties. Therefore we must look to that particular statute to ascertain the respective powers of the judge and the jury in fixing punishment.
3. Since the act of 1937 was passed, providing new punishments for robbery by force, this court has several times dealt with the provision that follows the imposition of alternative penalties of death or life imprisonment, that "the jury in all cases mayrecommend that the defendant be imprisoned for not less than 4 years nor longer than 20 years, in the discretion of thecourt." Those *142
cases have arisen both before and after the time when the repealed act of 1938 was in force. This court not only has held that the robbery by force statute was not void as failing to define what the "discretion" was that was vested in the court (Howard v. MacFeeley,
In the first Harris case, supra (
Thus, in the Harris decision, it was held, even when the act of 1938 was in force, that the jury still had the right to make a "recommendation" for the specified terms of years, less than life; but it was expressly recognized that such would be the sentence "had the judge followed the recommendation." While sec. 1 of the act of 1939 in terms repealed the act of 1938, neither sec. 1 nor other sections of the act of 1939 purported to modify the robbery by force statute as to the respective rights and powers of the judge and the jury in recommending or fixing punishment as provided by that particular statute.
Under the terms of the robbery by force statute, if the jury make no recommendation to mercy, the punishment is "death." If they recommend mercy generally, "punishment shall be imprisonment for life." But if the jury go further and "recommend that the defendant be imprisoned in the penitentiary for not less than 4 years nor longer than 20 years," then such a recommendation will be the punishment "in the discretion of the court." What is the significance of this last-quoted language? Clearly it can not be treated as meaningless, by holding that the judge has no discretion whatever, and that he must follow the identical finding of the jury. Clearly also, when the jury recommend mercy by a term or terms of years less than life, as the statute provides, it could not have been the legislative intent to give to the judge the power to wholly override this recommendation to mercy by imposing the death penalty, *144 any more than it was the legislative intent to permit the judge to impose the death penalty where the jury recommend mercy generally. As to a general recommendation of mercy, the statute by its mandatory words "shall be" makes life imprisonment the penalty. Where the jury recommend punishment for a designated term of years, only two alternative constructions remain: a right in the judge to wholly change the minimum and maximum terms of years "recommended" by the jury, by imposing different terms of years; or a right either to accept the jury's finding in toto, if the judge approves it, or to reject it in toto if he disapproves it, and in the latter event to impose life imprisonment, since the judge can not totally disregard the specific recommendation to mercy by imposing the death penalty.
The latter alternative construction seems to accord with the view of this court as expressed in the first Harris decision, quoted above. Such a construction likewise seems to accord more nearly with the legislative policy as to the imposition of punishment in criminal cases generally, by the repeal "in its entirety" of the act of 1938, and by the restoration to the jury, rather than the judge, of the primary responsibility of determining penalties in felony cases generally. Accordingly, where the jury has seen fit to recommend punishment for one found guilty of robbery by force, with stated minimum and maximum terms of years, the judge in his "discretion" may approve such recommendation by imposing the punishment recommended; otherwise he must impose life imprisonment.
Certain portions of the instructions to the jury in the present case correctly charged the rule just stated: that the "discretion" of the judge was limited to the right either to approve the jury's recommendation "and impose the term of years fixed . . in their verdict," or else, as the judge later charged, "the court would have the right to disapprove that recommendation and sentence the defendant for and during the remainder of his natural life," and that in no event would the "discretion" of the judge include the right to impose any sentence, between the four and twenty-year limits, different from the terms that the jury might recommend.
4. While the judge correctly charged the jury as just stated, and later, in giving alternative forms of verdicts, referred to his right to approve or disapprove in its entirety any recommendation by the jury as to terms of years, he nevertheless had previously instructed *145 them by concrete example that they could "fix not less than four years and not more than four years, and in that event that would be the sentence of the court." Also, in stating their right to fix other terms, six to eight years, ten to twelve years, or twenty years under the statute, he repeated after each statement that such a recommendation "would be the sentence of the court." Finally, but not until this longest period of time was stated, the judge correctly charged that he "would have the right to disapprove [the jury's] recommendation" and impose life imprisonment, or that he could "approve [their] recommendation and impose the terms of years fixed by you in your verdict." However, the jury might well have understood, in view of the extensive intervening instructions before the correct charge, that, even though the judge might have had the right to disapprove the terms of years recommended by the jury, yet, in view of what he specifically told them with reference to the particular terms of years stated, he would not actually exercise such right of disapproval. It has often been held, even in civil cases, that an erroneous charge is not corrected by the giving of a correct charge contradictory thereto, unless the latter statement is given in the same connection and amounts to a qualification and correction of the error. Here the correct charge did not even contradict the erroneous charge, since merely saying what the judge had the power to do did not withdraw the erroneous concrete statement as to what he actually would do. In agreeing upon a verdict recommending the lowest term of not less than four nor more than four years, the jury may have acted on the statement of the judge, which he made with reference to this particular term of years and without any condition or qualification in the same connection, that if their verdict should fix the punishment at this term of years, "that would be the sentence of the court." Such an instruction was necessarily prejudicial, since in reaching the verdict rendered it may have been a controlling or essential factor, and since the judge failed to follow the recommendation made, but imposed a sentence of life imprisonment.
It is especially contended by the State, that, even if this charge was erroneous for the reasons stated, it was harmless to the defendant, under the decision in Echols v. State,
For the reasons stated, the charge was erroneous and prejudicial, and the decision as originally rendered unconditionally reversed the judgment for that reason alone. A rehearing was granted chiefly in view of suggestions in the original brief of counsel for the defendant, and in the motion for rehearing by the solicitor-general, that if the court should adhere to its ruling that the charge was erroneous and prejudicial to the defendant, a new trial might not be necessary, but the cause should be remanded to the trial judge with instructions that if in his discretion he should find it proper to impose the sentence recommended by the jury, in lieu of the sentence actually imposed, a new trial should be denied; but that if the judge, in the exercise of his discretion, should be unable to reach such a conclusion and render such a judgment, then a new trial should be granted. In his brief on rehearing, counsel for the defendant, while asking for an outright reversal, states that if the case should be given that direction, "in that event we have no complaint." While this case differs somewhat from those where there was merely an omission to charge on the right of the jury to recommend, and where the court therefore had not by its sentence in any way passed on the question of overruling the recommendation of the jury, yet in view of the authority conferred by the Code, § 24-3901 (2), "to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein," and by § 6-1610 "to award such order or direction to the cause in the court below as may be consistent with the law and justice of the case," and especially where both parties have consented to such direction, the case is remanded with direction that if the trial judge, in the exercise of his exclusive discretion, shall impose the sentence recommended by the jury, then and in such event the judgment shall stand affirmed; but that if the trial judge in the exercise of his discretion should be unable to reach such a conclusion, then the judgment is reversed and a new trial is granted. As to the power and propriety of such a direction, see Colbert v. State,
Judgment reversed, with direction. All the Justices concur,except Duckworth, J., who dissents.