Clements v. State

Court of Appeals of Georgia

Clements v. State

200 S.E. 510, 59 Ga. App. 76, 1938 Ga. App. LEXIS 448

CourtCourt of Appeals of Georgia

DecidedDecember 3, 1938

Docket26999

StatusPublished

This text of 200 S.E. 510 (Clements v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clements v. State, 200 S.E. 510, 59 Ga. App. 76, 1938 Ga. App. LEXIS 448 (Ga. Ct. App. 1938).

Pincite

Opinion

MacTntyre, J.

At the October term, 1934, of Telfair superior court, an indictment was returned against the defendant, Bill Clements, for the murder of Claud Brewer. The case was called for trial on March 4, 1938, at the February téi*m of said court, and the jury returned a ver[77]*77diet finding tlie defendant guilty of voluntary manslaughter. The indictment charged and the proof disclosed that the crime was' committed on August 4, 1934. The trial judge instructed the jury on the law of voluntary manslaughter and further charged in this connection as follows: “Now the punishment for voluntary manslaughter is from one to twenty years in the penitentiary, which is fixed by the judge under the law when the jury finds the defendant guilty of voluntary manslaughter. So I will give you that form of verdict again. If you should find the defendant guilty of voluntary manslaughter then the form of your verdict should be, ‘We, the jury, find the defendant guilty of voluntary manslaughter.’ ” The defendant excepts to this charge and contends that the trial judge should have instructed the jury to fix the punishment in the event they found him guilty of voluntary manslaughter in accordance with the law as it existed at the time of the alleged offense. Held: The accused being amenable to the law as it existed at the time of the alleged offense, the provisions of the act approved subsequently thereto, to wit, February 16, 1938 (Ga. L. Ex. Session, 1937-8, p. 326), taking from the jury the power and duty of passing upon any question except that “of the guilt or innocence of the accused,” has in his case no application. Winston v. State, 186 Ga. 573 (198 S. E. 667); Hurt v. State, 187 Ga. 73 (199 S. E. 801). See also Hollis v. State, 48 Ga. App. 672 (173 S. E. 179). The court therefore erred in refusing to grant a new trial.

Decided December 3, 1938. Whaley & Raiulins, for plaintiff in error. ’21. H. Boyer, soliciior-general, W. S. Mann Jr., contra.

Judgment reversed.

Broyles, O. J.; and Querry; J., conmM'.

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MacTntyre, J.

At the October term, 1934, of Telfair superior court, an indictment was returned against the defendant, Bill Clements, for the murder of Claud Brewer. The case was called for trial on March 4, 1938, at the February téi*m of said court, and the jury returned a ver[77]*77diet finding tlie defendant guilty of voluntary manslaughter. The indictment charged and the proof disclosed that the crime was' committed on August 4, 1934. The trial judge instructed the jury on the law of voluntary manslaughter and further charged in this connection as follows: “Now the punishment for voluntary manslaughter is from one to twenty years in the penitentiary, which is fixed by the judge under the law when the jury finds the defendant guilty of voluntary manslaughter. So I will give you that form of verdict again. If you should find the defendant guilty of voluntary manslaughter then the form of your verdict should be, ‘We, the jury, find the defendant guilty of voluntary manslaughter.’ ” The defendant excepts to this charge and contends that the trial judge should have instructed the jury to fix the punishment in the event they found him guilty of voluntary manslaughter in accordance with the law as it existed at the time of the alleged offense. Held: The accused being amenable to the law as it existed at the time of the alleged offense, the provisions of the act approved subsequently thereto, to wit, February 16, 1938 (Ga. L. Ex. Session, 1937-8, p. 326), taking from the jury the power and duty of passing upon any question except that “of the guilt or innocence of the accused,” has in his case no application. Winston v. State, 186 Ga. 573 (198 S. E. 667); Hurt v. State, 187 Ga. 73 (199 S. E. 801). See also Hollis v. State, 48 Ga. App. 672 (173 S. E. 179). The court therefore erred in refusing to grant a new trial.

Decided December 3, 1938. Whaley & Raiulins, for plaintiff in error. ’21. H. Boyer, soliciior-general, W. S. Mann Jr., contra.

Judgment reversed.

Broyles, O. J.; and Querry; J., conmM'.

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200 S.E. 510, 59 Ga. App. 76, 1938 Ga. App. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clements-v-state-gactapp-1938.

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