Lawson v. State
| Decision Date | 26 November 1935 |
| Docket Number | 24692. |
| Citation | 182 S.E. 820,52 Ga.App. 181 |
| Parties | LAWSON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A verdict in these words: "We, the jury, find the defendant guilty of an assault and attempt and give him one year," upon an indictment for unlawfully shooting at another, the allegations of which are sufficient to authorize a conviction of an assault, was not so vague and uncertain that no legal judgment could be rendered. The words "and attempt" as they occur in the verdict can be given no effect consistent with the plain intent of the verdict and must be rejected as without meaning; they are surplusage.
2. The jury had no authority to fix the term of imprisonment in this case, a simple assault (a misdemeanor), yet such attempt on the part of the jury is to be treated as mere surplusage. The verdict of guilty was authorized. The sentence is a matter for the court.
Error from Superior Court, Laurens County; J. L. Kent, Judge.
Will Lawson was convicted of assault, and he brings error.
Affirmed.
W. A Dampier, of Dublin, for plaintiff in error.
J. A Merritt, Sol. Gen., of Dublin, for the State.
In this case the indictment charged the defendant with unlawfully shooting at another, but embraced the minor offense of an assault as renounced by section 26-1401 of the Ga. Code (1933) which reads as follows: "An assault is an attempt to commit a violent injury on the person of another." The verdict in the instant case is "We, the jury, find the defendant guilty of an assault and attempt and give him one year." This verdict is attacked as being void for uncertainty. "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Section 110-105 Ga. Code (1933). Arnold v State, 51 Ga. 144, 145. This verdict construed with the indictment and the issue formed upon it means that the jury found the defendant guilty of "an assault," that is, an attempt to commit a violent injury upon the person named in the indictment at the time and place charged and without justification. The verdict in the case sub judice was certain and valid according to a fair construction, before it was cumbered by the addition of useless matter, not qualifying the previous meaning, and the addition of the words "and attempt," they being useless matter, can be rejected as surplusage. See in this connection Baynes v. State, 25 Ga.App. 188, 102 S.E. 874; Espy v. State, 19 Ga.App. 743, 92 S.E. 229; Autrey v. State, 23 Ga.App. 143, 97 S.E. 753; City Council of Charleston v. Weikman, 2 Speers (S.C.) 371; Southern Ry. Co. v. Oliver & Morrow, 1 Ga.App. 734, 58 S.E. 244.
When the jury found the defendant guilty of an assault (which is a misdemeanor), it was the province of the court, and not of the jury, to fix the punishment, and when the jury undertook to fix the punishment by their verdict, it was irregular, and the court should have so informed them and sent them back to their room to correct it, but it was surplusage and did not vitiate the verdict. It still remained for the court, in pronouncing the judgment, to fix the punishment, and the court accordingly did so. The opinion of the jury did not control the court, and if the court should happen to fix the punishment the same as that found by the jury it is immaterial. It cannot be presumed that the court did not know the law. State v. Greer, 22 W.Va. 800; Harvey v. Commonwealth, 23 Grat. (64 Va.) 941; State v. Matthews, 191 N.C. 378 (2), 131 S.E. 743. There is no attack in this case upon the judgment, but the attack is on the verdict for uncertainty by a special ground in the motion for a new trial. The question as to whether the point can be raised in a motion for a new trial is not challenged by any of the litigants. The result is the same in this case whether we refuse to consider the point as being improperly raised or proceed to decide it; in either event the case is affirmed. The question of practice is doubtful. See Crow v. Crow, 134 Ga. 10, 67 S.E. 400; Smith v. State, 12 Ga.App. 667, 78 S.E. 134; Kidd v. State, 10 Ga.App. 147, 149, 75 S.E. 266 (original record shows the point was raised in motion for a new trial), in which the verdict was attacked for uncertainty in a motion for a new trial and the question was passed on by the court. See in this connection Robertson v. Aycock, 170 Ga. 523 (2, 3), 153 S.E. 213. See, also, cases cited in the specially concurring opinion. It is "easier" and more satisfactory to decide the question raised in the motion for a new trial than for this court to raise and decide the point of practice, for the result we reach makes a decision on the practice question immaterial from a practical standpoint. Central of Georgia Ry. Co. v. Blackman, 7 Ga.App. 766, 769, 68 S.E. 339.
The evidence authorized the verdict.
Judgment affirmed.
The plaintiff in error in his amendment to the motion for a new trial...
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