Echols v. State

• Decision Date: 25 January 1900
• Citation: 34 S.E. 1038,109 Ga. 508
• Parties: ECHOLS v. STATE.
• Court: Georgia Supreme Court

34 S.E. 1038

109 Ga. 508

ECHOLS v. STATE.

Supreme Court of Georgia

January 25, 1900

Syllabus by the Court.

1. In giving in charge so much of section 1036 of the Penal Code as relates to recommendations by juries concerning punishment the judge should not omit to state that the recommendation of a jury, made under its provisions, will be effectual only in case it is approved by him. He should not, however, give in charge the last sentence of that section, which relates to the power which the judge, independently of any action by the jury, has over penalties.

2. Though the charge in the present case did not, in all respects, conform to what is above laid down, a new trial will not be ordered, for the guilt of the accused was strongly and conclusively established, and the conviction was fully approved by the trial judge.

3. Nothing will be heard from a juror which can have the effect of in any manner impeaching his verdict.

4. Counsel for the accused cannot, as matter of right, when he is making his statement to the court and jury, ask him questions, or make suggestions to him. It is entirely a matter of discretion with the judge whether or not such things shall be allowed.

Error from superior court, Newton county; J. S. Candler, Judge.

Charles H. Echols was convicted of assault with intent to murder, and he brings error. Affirmed.

L. L Middlebrook, F. C. Foster, and J. M. Pace, for plaintiff in error.

W. T Kimsey, Sol. Gen., and E. F. Edwards, for the State.

LUMPKIN P.J. 1, 2, 3.

In Johnson v. State, 100 Ga. 78, 25 S.E. 940, this court held that on the trial of a person indicted for the commission of a felony, other than one of those enumerated in section 1036 of the Penal Code. It was the duty of the court, whether so requested or not, to inform the jury of so much of the provisions of that section as related to their power, in the event of conviction, to recommend that the accused be sentenced as for a misdemeanor. To properly give in charge the provisions just indicated, necessarily, we thought, involved telling the jury that, "when such recommendation is approved by the judge presiding at the trial" the offense must be punished as a misdemeanor; in other words, we intended to lay down the proposition that the judge ought to instruct the jury concerning their power to make the recommendation, and also let them understand that it would be effectual to reduce the penalty only when approved by him. In Cunningham v. State, 103 Ga. 239, 29 S.E. 926, we were undertaking to deal with another and entirely different matter. The above-cited section, after declaring that the jury might make the recommendation mentioned, and when it should have the effect of mitigating the punishment, embraced an additional provision in these words: "If the judge trying the case sees proper, he may, in his punishment, reduce such felonies to misdemeanors." We held in the case last cited that the judge should not give in charge to the jury that part of the section which we have just quoted. In the opinion (page 240, 103 Ga., and page 926, 29 S.E. ) it was said we did not think that the judge should "instruct the jury that, with or without a recommendation on their part, he could, if he saw proper, punish the accused as for a misdemeanor." We did not mean to convey the idea that it would not be proper for the judge, in a case to which this section is applicable, to inform the jury that their recommendation would, if approved by him, reduce the punishment to that of a misdemeanor. Indeed, we think he ought to so inform them, in order that they may understand exactly what the law says with reference to their recommendation and its effect. Our idea in the last case was to lay down the rule that the judge should not inform the jury what his power was in such cases independently of their action in the premises. We did not, perhaps, express ourselves with sufficient distinctness. Candor constrains the writer to admit that his language was not as perspicuous as it might have been. We hope that we have this time made the matter clear.

The application of the foregoing to the case in hand will now be made. Echols, the plaintiff in error, was tried and convicted under an indictment charging him with the offense of assault with intent to murder. The judge charged the jury: "In all cases of assault with intent to murder, the jury may, in the event of their finding the defendant guilty, recommend that he be punished as for a misdemeanor." He did not add that such a recommendation would be...