Harris v. State of Georgia

Supreme Court of Georgia

Harris v. State of Georgia

119 S.E.2d 352, 216 Ga. 740, 1961 Ga. LEXIS 325

CourtSupreme Court of Georgia

DecidedApril 6, 1961

Docket21189

StatusPublished

Cited by11 cases

This text of 119 S.E.2d 352 (Harris v. State of Georgia) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harris v. State of Georgia, 119 S.E.2d 352, 216 Ga. 740, 1961 Ga. LEXIS 325 (Ga. 1961).

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Opinion

*740 Head, Presiding Justice.

Donald M. Harris was convicted on September 11, 1958, in the Superior Court of Fulton County-on an indictment in two counts charging him with the offense of robbery by “use of an offensive weapon” (Ga. L. 1957, pp. 261, 262, Code Ann. Supp. § 26-2501). The jury on each count fixed the term of imprisonment as “a minimum of eight (8) years and a maximum of twenty (20) years,” and recommended “treatment as a misdemeanor.” On the same date the trial judge imposed a sentence on each count for a term of not less than 8 years and not more than 20 years, and provided that the sentence on count 2 should follow the sentence on count 1. In his petition for writ of habeas corpus, the prisoner contended that the jury’s recommendation “is binding on the court” and that he is “confined on a felony offense” contrary to the recommendations of the trial jury. The Judge of the Superior Court of Tattnall County declined to issue the writ, and the exception is to this judgment. Held:

Code § 27-2501, as amended, Ga. L. 1939, pp. 285, 287, provides that all felonies (except those named) shall be punished “for the terms provided by law; but 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 misdemeanors. This provision of our law was first enacted in 1895 (Ga. L. 1895, p. 63). It has been the rule since the passage of the act of 1895 that it is in the “discretion of the trial judge whether 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. 828). In the present case, the allegations of the petition were insufficient to authorize the discharge of the prisoner.

Judgment affirmed.

All the Justices concur.

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*740 Head, Presiding Justice.

Donald M. Harris was convicted on September 11, 1958, in the Superior Court of Fulton County-on an indictment in two counts charging him with the offense of robbery by “use of an offensive weapon” (Ga. L. 1957, pp. 261, 262, Code Ann. Supp. § 26-2501). The jury on each count fixed the term of imprisonment as “a minimum of eight (8) years and a maximum of twenty (20) years,” and recommended “treatment as a misdemeanor.” On the same date the trial judge imposed a sentence on each count for a term of not less than 8 years and not more than 20 years, and provided that the sentence on count 2 should follow the sentence on count 1. In his petition for writ of habeas corpus, the prisoner contended that the jury’s recommendation “is binding on the court” and that he is “confined on a felony offense” contrary to the recommendations of the trial jury. The Judge of the Superior Court of Tattnall County declined to issue the writ, and the exception is to this judgment. Held:

Code § 27-2501, as amended, Ga. L. 1939, pp. 285, 287, provides that all felonies (except those named) shall be punished “for the terms provided by law; but 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 misdemeanors. This provision of our law was first enacted in 1895 (Ga. L. 1895, p. 63). It has been the rule since the passage of the act of 1895 that it is in the “discretion of the trial judge whether 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. 828). In the present case, the allegations of the petition were insufficient to authorize the discharge of the prisoner.

Judgment affirmed.

All the Justices concur.

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119 S.E.2d 352, 216 Ga. 740, 1961 Ga. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-state-of-georgia-ga-1961.

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