26 S.E.2d 301 | Ga. Ct. App. | 1943
1. The crime of larceny from the house, where the value of the goods taken therefrom was as much as $50 or more (of which the defendant was convicted), is a felony. The punishment for such a crime is from one to ten years in the penitentiary, "But on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crime shall be punished as a misdemeanor." Code, § 27-2501.
2. The judge charged the jury: "If you convict the defendant, that is, if you find him guilty of burglary, you would have a right to recommend mercy. If you fail to find him guilty of burglary, but you find him guilty of larceny from the house, and find that the value of the goods alleged to have been taken from the house was as much as $50 or more, then he would be guilty of a felony; and if the value of such articles alleged to have been taken and shown by the evidence in connection with the defendant's statement to have been taken is less than $50, he would only be guilty of a misdemeanor. If you find him guilty of larceny from the house, you would have the right to recommend mercy; and I will give you all the forms before I conclude the charge." The verdict was; "We, the jury, find the defendant, George Summerville, guilty. Larceny from the house. . . We the jury fix sentence one to three years." The judge sentenced the defendant to serve one to three years in the penitentiary. We can not say with certainty that *554 the jury understood that, in the event of a conviction of this "reducible felony, the jury could recommend, if they saw fit, that the defendant be punished as for a misdemeanor. The charge as given failed to comply with above-stated provisions of the Code, and such failure was reversible error.
By referring to the record in Johnson v. State,
It seems to us that if in the instant case, where the felony of which the defendant was found guilty is punishable in the penitentiary from one to ten years, and was one of those not enumerated in the Code, § 27-2501 ("reducible felonies"), and where the verdict fixed his punishment at one to three years, and recommended mercy, and the judge's sentence was not for a misdemeanor but was for one to three years in the penitentiary, it was reversible error if the judge in his charge failed to inform the jury of their right to recommend a misdemeanor punishment according to the Code, § 27-2501, which is as follows: "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, false swearing, and subornation of perjury or false swearing, shall be punished by imprisonment and labor in the penitentiary for the terms set forth in the several sections in this Code prescribing the punishment of such offenses; but 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. If the judge trying the case sees proper, he may in fixing the punishment, reduce such felonies to misdemeanors."
In the instant case, as in the Moore case, supra, the minimum sentence imposed by the judge was the lowest, but the maximum sentence was not the lowest that could be imposed, treating the crime as a felony. And if a charge by the judge merely stating, if the jury found the defendant guilty of the felony in question, that they had a right to recommend mercy, was not a compliance with § 27-2501, then the ruling in the Moore
case would be applicable, *558
and not the rule in Daniel v. State,
The State relies strongly on Sterling v. State,
Thus in the Sterling and the Jones cases, supra, the judge, under the law at the time they were decided, fixed the punishment in felony cases as well as misdemeanor cases; and the only right the jury had, relatively to fixing the punishment, was to recommend mercy — they could not fix the punishment, while at the present time, when there is a jury trial, the jury fixes the maximum and the minimum term in the penitentiary in "cases of felony not punishable by life imprisonment." Code, § 27-2502. However, there are two instances in which the judge may fix the punishment under an indictment for a felony: (1) where the defendant pleads guilty. (§ 27-2503); (2) where the jury recommends a misdemeanor punishment under § 27-2502, and the judge approves such recommendation. A charge in conformity with the old § 4656 of the Code of 1882 was a good charge in theSterling case, supra, decided in 1892, but is not necessarily a charge in conformity with § 27-2501 of the Code of 1933, which gives the jury the right to recommend a misdemeanor punishment. The cases of Johnson v. State,
We can not say from the charge that the jury did not understand that a recommendation for mercy would mean that they desired a light punishment. Yet the punishment must, under the law, be as for a felony; for was not the defendant charged with a felony, and was the jury not instructed that if a verdict declaring that the crime in question was found, it must be for a *560 felony, although they might recommend mercy? It might be noted that the charge relative to the felony of which he was convicted did not expressly state that a recommendation to mercy would be considered by the judge as a recommendation of a punishment as for a misdemeanor. We think that the jury were entitled to be informed in plain and unmistakable language that they had the right to recommend that the accused be punished as for a misdemeanor, and that their recommendation would not be binding on the judge or effective, unless approved and acted upon by him.
We do not say that the language of the Code, § 27-2501, must be used by the judge, nor do we prescribe any precise form of words to be used by the judge in informing the jury of their right to recommend misdemeanor punishment and the effect of their recommendation. However, in this case, we can not say that the jury understood from the charge that they had a right to recommend a misdemeanor punishment and the effect thereof. It is impossible to say with certainty that the charge did not injuriously affect the defendant. Consequently we must order a new trial.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.