Camp v. State

• Decision Date: 17 November 1938
• Docket Number: 12493.
• Citation: 200 S.E. 126,187 Ga. 76
• Parties: CAMP v. STATE.
• Court: Georgia Supreme Court

200 S.E. 126

187 Ga. 76

CAMP v. STATE.

No. 12493.

Supreme Court of Georgia

November 17, 1938

Error from Superior Court, Fulton County; Paul S. Etheridge, Judge.

C. J Camp was convicted of larceny after trust, and he brings error.

Reversed.

Geo. G Finch and Jas. L. Finch, both of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., J. Walter Le Craw, Quincy O. Arnold, and E. A. Stephens, all of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS Justice.

1. Under the indeterminate-sentence act of August 18, 1919 (Ga.L.1919, p. 387; Code, § 27-2502), 'the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as the 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 the jury,' and under rules of the prison commission as to the place of service of the sentence after expiration of the minimum time. Such a right to this determination by the jury is a substantial right of the defendant, a failure to charge upon which, even without a request, is reversible error, Butt v. State, 150 Ga. 302(3), 308, 103 S.E. 466; and a failure to return a verdict or impose sentence according to which will render the verdict or judgment illegal, unless a minimum sentence was imposed so as to render the error harmless. See Oliver v. Lowry, 173 Ga. 892, 893, 161 S.E. 828; Mitchell v. State, 34 Ga.App. 505, 506, 130 S.E. 355, and cit. Under the new act of February 16, 1938 (Ga.L.Ex.Sess.1937-1938, p. 326), 'a different procedure is outlined, in that under it the judge shall fix sentence 'as provided by law,' taking into consideration the 'case history' of the defendant as determined by his investigation.' Winston v. State, 186 Ga. 573, 198 S.E. 667, 669.

2. The punishment imposed for larceny after trust under the Code, § 26-2806, is imprisonment and labor for not less than two or more than seven years. The indeterminate-sentence act thus gave to the jury the power and duty to impose a maximum and minimum sentence within those limits. See Oliver v. State, 160 Ga. 365(6), 127 S.E. 732; Loyd v. State, 150 Ga. 803, 105 S.E. 465; Johnson v. State, 154 Ga. 806(2), 115 S.E. 642; Johnson v. State, 29 Ga.App. 659, 660(2), 116 S.E. 226; Powell v. State, 25 Ga.App. 329(5), 103 S.E. 174.

3. Under the rulings in the Winston Case, supra, and the preceding rulings, where the defendant was convicted of larceny after trust, committed before the act of February 16 1938, taking from juries the power to fix indeterminate and other sentences, it was ex post facto as to the defendant, in that his trial under the new act deprived him of a substantial preexisting right, and substituted a new and different procedure for punishment, including the required consideration of the 'case history' of the defendant. Accordingly,...