Oliver v. Lowry, 8529.

• Citation: 161 S.E. 828,173 Ga. 892
• Decision Date: 17 December 1931
• Docket Number: No. 8529.,8529.
• Parties: OLIVER . v. LOWRY, Sheriff.
• Court: Supreme Court of Georgia

173 Ga. 892

161 S.E. 828

OLIVER .

v.LOWRY, Sheriff.

No. 8529.

Supreme Court of Georgia.

Dec. 17, 1931.

Syllabus by the Court.

1. Where, on the trial of one charged with a felony, the jury returned a verdict finding the defendant guilty, and recommending him to the mercy of the court, hut failed to prescribe a minimum and maximum term of punishment, the verdict was not void. And where the court did not give effect to the recommendation to mercy by imposing a sentence as for a misdemeanor, but fixed the term of punishment at the minimum term prescribed in the statute, the prisoner could not complain.

2. Applying this ruling to the facts of this case, the judge did not err in refusing to release the prisoner, and in remanding him to custody.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Proceedings by C. V. Oliver for writ of habeas corpus to be directed to J. I. Lowry, Sheriff. Judgment was entered remanding petitioner to custody, and he brings error.

Affirmed.

Joseph D. Lewis, Swift Tyler, Jr., and Ernest Watts, all of Atlanta, for plaintiff in error.

John A. Boykln, Sol. Gen., and J. W. Le Craw, both of Atlanta, for defendant in error.

BECK, P. J.

C. V. Oliver brought his petition for habeas corpus against J. I. Lowry, sheriff. After hearing evidence and argument, the presiding judge remanded the prisoner to custody, and to the order the petitioner excepted. The applicant had been indicted under Park's Ann. Penal Code, §§ 183 (a), 183 (b), for possessing nitroglycerine and dynamite cap and fuse with intent to commit burglary. The punishment for the crime for which he was convicted is from three to ten years. The jury had been permitted to return a sealed verdict and to separate. The verdict was as follows: "We, the jury, find the defendant guilty as charged, and recommend him to the mercy of the court." It was dated and signed by the foreman.

The statute in regard to indeterminate sentences (Ga. Laws 1919, p. 387, 11 Park's Ann. Pen. Code Supp. 1922, § 1081(e) provides that: "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." In view of this provision of the law, it is insisted by the plaintiff in error that, the jury having failed to fix a minimum and maximum term of imprisonment, the verdict was invalid and void, and that the judgment and sentence of the court predicated upon said verdict was also necessarily null and void. This contention does not meet with our assent. Neither the verdict nor the sentence was void. Inasmuch as the jury recommended the prisoner to the mercy of the court, the court might have approved this and imposed a misdemeanor sentence. Pen. Code, § 1062. But evidently the court did not approve of a verdict, which meant that the crime should be punished as for a misdemeanor. However, the judge fixed the lowest penalty prescribed by the statute...