14 Ga. App. 492 | Ga. Ct. App. | 1914
The accused was indicted for the offenée of assault with intent to murder, alleged to have been committed upon the person of one Powell, by cutting and stabbing him with a pocket-knife. The jury found the defendant guilty of assault with intent to murder, with the recommendation that he be punished for a misdemeanor. The judge, as was his right,' disregarded the recommendation and sentenced the defendant to labor five years in the penitentiary. Only one of the assignments of error in the motion for a new trial is insisted upon before this court, and in connection therewith counsel asks that the ruling of this court in Gaskins v. State, 12 Ga. App. 97 (76 S. E. 777), be reviewed and overruled. It is alleged that the court erred in that after having charged the jury that they would be authorized, should they find a verdict of guilty, to go further and recommend that the defendant be punished as for a misdemeanor, the court failed, in the same connection or elsewhere, to inform the jury that such a recommendation, to be effective, would have to meet with the approval of the judge. In other words, the contention is that it is error for the court merely to instruct the jury that they may recommend that one on trial for a particular felony be punished as for a misdemeanor, without also informing the jury as to the legal effect of the recommendation should they see proper to make it; that the effect of such an instruction is to lead the jury to infer that the recommendation would be binding upon the court; thus tending to induce them to agree to a verdict different from that which they would render if they knew that their recommendation as to the punishment might be wholly ineffectual and futile. Of course, if the jurors should be influenced by their knowledge of the fact that the judge can entirely disregard the recommendation of a misdemeanor punishment as an excuse to acquit one whom they are satisfied is guilty of a violation of the penal law, they would be subject to the criticism Of Lumpkin, P. J., in Echols v. State, 109 Ga. 511 (34 S. E. 1039). He said: “It was upon the jury to say whether or not the evidence satisfied them beyond a reasonable doubt of his guilt. Its sufficiency for this purpose could not be affected by the result to follow the verdict. They said under their oaths that the accused was guilty, and did so upon testimony fully warranting their finding. If any juror consented to this verdict under the belief that the punishment must be as for a misdemeanor, but would not have
The General Assembly, for good and sufficient reasons, saw proper
The offense charged in the present case well illustrates the thought we have in mind. The accused is charged with assault with intent to murder. The assault is alleged to have been made with a knife;
We have said so much because this_view of the matter did not present itself to the court at the time we made the ruling in GasJdns v. State, supra, which we feel .constrained to modify. In that ease the evidence of the defendant’s guilt of the-offense as charged was deemed so conclusive — since the jury rejected the theory of self-defense — that the court overlooked for the moment the ruling of
Learned counsel for the plaintiff in error, in his argument, very properly admitted that there is no merit in his assignment of error if the ruling of this court in the Gaslcins case, supra, is adhered to; and this statement is true, since the plaintiff in error relies only on the assignment of error which complains of the charge of the court on the subject of the jury’s right of recommendation. In the Gaslcins case it was held that the court did not err, after instructing the jury that they had the right to recommend that the accused be punished as for a misdemeanor, in failing to add that the court had the power to disregard such recommendation; and, no doubt, our failure to disapprove the instruction in the Gaslcins case led the learned trial judge into the same error in the case at bar. Even Homer sometimes nods, and we may perhaps be permitted to say that in the overwhelming volume of cases which call for painstaking review on the part of the members of this
The ruling in Lingerfelt v. State, 125 Ga. 4 (53 S. E. 803, 5 Ann. Cas. 310), while not directly in point, seems to sustain the view that the scope of the trial judge’s instructions should be sufficiently broad to apprise the jury that their recommendation is not conclusive upon the trial judge in ease he should see proper to disregard the recommendation; to the end that the jury may exercise at least such right of choice in the penalty to be affixed to'their finding as the law may permit. In Lingerf elt’s case, it is true, the instructions of the trial judge were not held to be erroneous; and this’ was because the jury were told that "if the judge should approve ’ [the recommendation], he would be punished as for a misdemeanor.” ' The court held only that in the absence of a request for a more specific charge on the subject, there was no error in failing to explain to the jury that the judge could disregard the recommendation and punish as for a felony; and it is therefore clear to. our minds that the instruction was held sufficient because further explanation would only have made more plain the negative pregnant couched in the language used by the trial judge. When the judge, in Lingerf eli’s case, told the jury that the accused would be punished as for a misdemeanor if he approved the recommendation, it was easily to be inferred by the jury that if the recommendation as to misdemeanor punishment was not approved, the accused would be punished as for a felony.