Powell v. State

Court of Appeals of Georgia

Powell v. State

156 S.E.2d 188, 115 Ga. App. 791, 1967 Ga. App. LEXIS 1258

CourtCourt of Appeals of Georgia

DecidedMay 26, 1967

Docket42816

StatusPublished

Cited by1 cases

This text of 156 S.E.2d 188 (Powell 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

Powell v. State, 156 S.E.2d 188, 115 Ga. App. 791, 1967 Ga. App. LEXIS 1258 (Ga. Ct. App. 1967).

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Opinion

Joslin, Judge.

The accused was convicted of breaking and entering with intent to commit larceny and sentenced for a term of three years. This appeal does not challenge the conviction of the accused of the crime charged but asserts error in the judge’s charge to the jury on the fixing of sentence, and in imposing sentence upon the accused.

At the close of his instructions, the judge instructed as to the sentence the jury might properly give in the event of conviction. This instruction was proper under the then existing law requiring a determinate sentence for a specific number of years. Code Ann. § 27-2502. The record then shows a discussion at the bench, after- which the judge instructed the jury to disregard his previous instructions as to the sentence. He then gave new instructions based upon a law which required the jury to prescribe an indeterminate, sentence. Code Ann. § 27-2502. The jury returned a verdict of guilty and fixed the sentence “from three to five years,” and the sentence of the court was made providing for the term of three to five years. On the same day, presumably after the first sentence, the court fixed the sentence to a three-year term.

It is evident from the record that both counsel and the judge were uncertain as to whether the instruction should direct the jury to fix a determinate or indeterminate sentence, if the accused were found guilty. The jury did pronounce an indeterminate sentence of three to five years, when in fact it should have been instructed to pronounce a determinate sentence, and should have pronounced such a sentence. The court, evidently convinced of the error, changed the sentence to three years instead of the former three to five-year sentence. See Code § 24-104 (6); Rutland v. State, 14 Ga. App. 746 (82 SE 293); Gobles v. Hayes, 194 Ga. 297 (21 SE2d 624).

It is obvious that there was some confusion on the part of all parties concerned, but any errors involved were trifling and were harmless. In fact, as the jury announced a sentence from three to five years and the judge sentenced for three years, any error could only benefit the accused.

As the errors were minor and harmless and no injury was occasioned the accused, the judgment should be sustained. See Porter v. State, 6 Ga. App. 770, 771 (2) (65 SE 814); Alford [792]*792v. State, 33 Ga. 303 (1) (81 AD 209); Vun Cannon v. State, 208 Ga. 608, 614 (68 SE2d 586).

Beil, P. J., and Pannell, J., concur. Argued May 1, 1967 Decided May 26, 1967. Atkins & Atkins, Ben S. Atkins, for appellant. Floyd G. Hoard, Solicitor General, for appellee.

Judgment affirmed.

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Joslin, Judge.

The accused was convicted of breaking and entering with intent to commit larceny and sentenced for a term of three years. This appeal does not challenge the conviction of the accused of the crime charged but asserts error in the judge’s charge to the jury on the fixing of sentence, and in imposing sentence upon the accused.

At the close of his instructions, the judge instructed as to the sentence the jury might properly give in the event of conviction. This instruction was proper under the then existing law requiring a determinate sentence for a specific number of years. Code Ann. § 27-2502. The record then shows a discussion at the bench, after- which the judge instructed the jury to disregard his previous instructions as to the sentence. He then gave new instructions based upon a law which required the jury to prescribe an indeterminate, sentence. Code Ann. § 27-2502. The jury returned a verdict of guilty and fixed the sentence “from three to five years,” and the sentence of the court was made providing for the term of three to five years. On the same day, presumably after the first sentence, the court fixed the sentence to a three-year term.

It is evident from the record that both counsel and the judge were uncertain as to whether the instruction should direct the jury to fix a determinate or indeterminate sentence, if the accused were found guilty. The jury did pronounce an indeterminate sentence of three to five years, when in fact it should have been instructed to pronounce a determinate sentence, and should have pronounced such a sentence. The court, evidently convinced of the error, changed the sentence to three years instead of the former three to five-year sentence. See Code § 24-104 (6); Rutland v. State, 14 Ga. App. 746 (82 SE 293); Gobles v. Hayes, 194 Ga. 297 (21 SE2d 624).

It is obvious that there was some confusion on the part of all parties concerned, but any errors involved were trifling and were harmless. In fact, as the jury announced a sentence from three to five years and the judge sentenced for three years, any error could only benefit the accused.

As the errors were minor and harmless and no injury was occasioned the accused, the judgment should be sustained. See Porter v. State, 6 Ga. App. 770, 771 (2) (65 SE 814); Alford [792]*792v. State, 33 Ga. 303 (1) (81 AD 209); Vun Cannon v. State, 208 Ga. 608, 614 (68 SE2d 586).

Beil, P. J., and Pannell, J., concur. Argued May 1, 1967 Decided May 26, 1967. Atkins & Atkins, Ben S. Atkins, for appellant. Floyd G. Hoard, Solicitor General, for appellee.

Judgment affirmed.

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156 S.E.2d 188, 115 Ga. App. 791, 1967 Ga. App. LEXIS 1258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-gactapp-1967.

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