Arnold v. State

71 S.E.2d 102, 86 Ga. App. 160, 1952 Ga. App. LEXIS 904

Opinion

Townsend, J.

The punishment for larceny of a hog is fixed by statute at “not less than two nor more than four years.” Code, §§ 26-2611, 26-2609. Code § 59-805 provides that, at the trial of every offense which may subject the defendant to “death or imprisonment in the penitentiary for not less than four years,” the defendant may peremptorily challenge twenty jurors from those impaneled to try him. The term “not less than” four years in Code § 59-805 includes the amount of exactly four years. Worth v. Peck, 7 Pa. (7 Barr) 268, 272; In re Gregg’s Estate (Pa.) 62 Atl. 856, 857; O’Day v. People, 114 Colo. 373 (166 Pac. 2d, 789). Further, the term “not more than four years” in Code § 26-2609 means “not exceeding four years,” and includes the amount of exactly four years. State v. Vashon, 123 Me. 412 (123 Atl. 511); Pickett v. Smith, 95 Ga. 757 (1) (22 S. E. 669). On the trial of each of these cases a punishment of exactly four years might have been inflicted, and as such sentence is included within the terms of Code § 59-805, supra, the trial court erred in allowing the defendants no more than 12 peremptory challenges.

Judgments reversed.

Gardner, P.J., and Carlisle, J., concur. Smith & Smith, for plaintiff in error in case No. 34073. J. B. Walker, Solicitor-General, Kopp & Peavy, contra. Herbert W. Wilson, Leon A. Wilson II, for plaintiff in error in case No. 34074. J. B. Walker, Solicitor-General, Kopp & Peavy, contra.