Miller v. State

58 Ga. 200

Opinion

Bleckley, Judge."

1. When, upon an indictment charging an offense, the verdict is for an attempt (as it may be under section 4675 of the Code), the penalty, unless prescribed elsewhere, may be drawn from section 4712, if any of the penalties there enumerated will apply in terms to the case — see 53 Ga., 126. These penalties are not restricted to convictions had upon indictments for attempts, framed under the latter section, but are equally appropriate to convictions where offenses themselves are charged under other sections and only attempts are proved.

2. The indictment charging simple larceny, and setting out the stealing of two cattle, and the verdict being, “We, the jury, find the defendant guilty of an attempt to commit a simple larceny,” the verdict means that the prisoner is not guilty of stealing the cattle as charged, but that he is guilty of an attempt to steal them. ' In other words, it means that he did not commit the specific simple larceny for which he was indicted and tried, but that he attempted to commit it. The verdict is, therefore, sufficiently certain and comprehensive. When only a minor offense is found, the finding, unless set aside at the prisoner’s instance, is a full and complete acquittal of tlie major offense charged — 22 Ga., 546; 26 Ib., 579 ; 11 Ib., 241; 1 Kelly, 227. Eor this reason, the silence of the verdict on the direct question of the larceny itself, does not vitiate the finding.

3. Cattle-stealing is simple larceny — Code, section 4397. The stealing of one or more cattle is punishable by imprisonment in tlie penitentiary not less than two, nor more than four years, unless the jury shall recommend the prisoner to mercy, in which case it is punishable as a misdemeanor. Ib.. §4399. When the prisoner is liable to be punished* by imprisonment in the penitentiary, the offense is felony. Ib., §4304. And this is so prima facie, even though there may be a discretion to inflict a lower grade of punishment. 39 Ga., 85. There is a penalty prescribed in the third paragraph of section 4712 of the Code, for an attempt to commit an offense punishable with imprisonment in the penitentiary for a time not less than two years. That penalty is, like imprisoment for the term of one year. Therefore, as cattle-stealing is, prima facie, felony, punishable with imprisonment in the penitentiary for a time not less than two years, the attempt to steal cattle is punishable by like imprisonment for one year. It may or may not follow, that -where the jury find the offense itself and recommend to mercy, the actual stealing would be more lightly punished than a mere attempt to steal could be if the attempt only were found in the same case. But this anomaly, if it exists, is the result of oversight in legislation.

Footnotes

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* It need not prevent a court from holding that, as a general rule of law, cattle-stealing is punishable with imprisonment in the penitentiary for a time not less than two years. Every case is to be considered subject to this general rule, until taken out of it by a recommendation to mercy. There has been no recommendation to mercy in respect to the particular larceny which the prisoner attempted to commit. If he had succeeded in committing it, he would have been liable, on conviction, to be sent to the penitentiary, and if sent at all, his term could not have been less than two years.

The motion in arrest of judgment was properly overruled.

Judgment affirmed.

The act of 1877, pamph. p. 22, clears up the subject as to future cases.