Johnson v. State
| Decision Date | 09 January 1896 |
| Citation | 25 S.E. 940,100 Ga. 78 |
| Parties | JOHNSON v. STATE. |
| Court | Georgia Supreme Court |
Criminal Law — Recommendation to Mercy — Instructions.
A person indicted for the commission of a felony, other than one of those enumerated in section 1036 of the Penal Code, is entitled upon his trial to have the judge instruct the jurythat it is within their power, in the event of conviction, to recommend that the accused be sentenced as for a misdemeanor. Such recommendation, while not conclusive upon the judge, is nevertheless a persuasive influence by which the jury may lawfully and appropriately appeal to his discretion, and the court should, whether so requested or not, inform them as to the provisions of the above-cited section of the Code on this subject. The correctness of this conclusion is the more apparent when the policy of the law, as declared in section 1037 of the Penal Code, is considered. (Syllabus by the Court.)
Error from superior court, Richmond county; E. H. Callaway, Judge.
Walter Johnson was convicted of burglary, and brings error. Reversed.
The following is the official report: Walter Johnson was indicted for burglary, and was found guilty. His motion for a new trial was overruled, and he excepted. The motion was upon the general grounds that the verdict was contrary to law, evidence, etc. Further, because the court erred in failing to charge the jury under the act entitled "An act to prescribe penalties for all felonies under the laws of this state except treason, insurrection, murder, assault with intent to rape, rape, sodomy, foeticide, mayhem, seduction, arson, burning railroad bridges, * * * perjury, false swearing and subornation of perjury and false swearing, and to provide that all misdemeanors shall be punished as prescribed in section 4310 of the Code, and for other purposes." Laws 1895, p. 63. Said act provides 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 prescribed in section 4310 of the Code. The error being that the jury should have been put upon notice that they had, in the case at bar, the power to recommend the prisoner to the mercy of the court.
Chas. A. Picquet, for plaintiff in error.
W. H. Davis, Sol. Gen., and Anderson, Felder & Davis, for the State.
Judgment reversed.
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Johnson v. State
...he will approve such recommendation, and his action in the matter is final.' Guthrie v. State, 125 Ga. 291(1), 54 S.E. 180; Johnson v. State, 100 Ga. 78, 25 S.E. 940; Taylor v. State, 110 Ga. 150, 35 S.E. 161; Daniel v. State, 118 Ga. 16, 43 S.E. 861; Oliver v. Lowry, 173 Ga. 892, 161 S.E. ......
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Maxwell v. State
...Error in charging the minimum sentence to be inflicted is error. Summerville v. State, 69 Ga.App. 553(2), 26 S.E.2d 301; Johnson v. State, 100 Ga. 78, 25 S.E. 940; Thompson v.State 151 Ga. 328, 106 S.E. 278; Moore v. State, 150 Ga. 679, 104 S.E. 907. It may be harmless error where it is obv......
- Glover v. State
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Glover v. State
... ... See. also, ... Smith v. State, 6 Ga.App. 577, 65 S.E. 300 ... 3. The ... charge of the court in the main was very able, fair, and ... lucid. There was an omission, however, which under the ... decision of the Supreme Court in Johnson v. State, ... 100 Ga. 78, 25 S.E. 940, ... [67 S.E. 688.] is so material as not to be treated as harmless error. The ... offense of which the defendant was convicted is one of those in ... which the jury have the right to make the recommendation that ... the defendant be punished as for a ... ...