Thompson v. State

Court of Appeals of Georgia

Thompson v. State

107 S.E. 91, 26 Ga. App. 583, 1921 Ga. App. LEXIS 533

CourtCourt of Appeals of Georgia

DecidedApril 13, 1921

Docket11562

StatusPublished

This text of 107 S.E. 91 (Thompson 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

Thompson v. State, 107 S.E. 91, 26 Ga. App. 583, 1921 Ga. App. LEXIS 533 (Ga. Ct. App. 1921).

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Opinion

Luke, J.

The defendant was charged with the offense of assault with intent to murder, and was convicted of that offense by the jury, who, under the “indeterminate-sentence act” (Ga. L. 1919, p. 387), fixed his sentence at not less than two years nor more than two years. The defendant made a motion for a new trial, on various grounds, one of which complained that the court failed _ to charge the jury that they might recommend that the defendant be punished as for a misdemeanor. The motion was overruled and the defendant excepted, and this court affirmed the judgment of the trial court (25 Ga. App. 483, 103 S. E. 731). Hpon certiorari, the Supreme Court reversed the judgment of this court, and held that the trial judge committed reversible error when he failed to instruct the jury, even without a request, that in the event they convicted the defendant of an assault with intent to murder they could recommend, if they saw fit, that he be punished as for a misdemeanor. It is therefore ordered that the former judgment of this court in this case be vacated; and the judgment of the trial court, overruling the motion for a 'new trial, is reversed solely on the above ground. The exception to the overruling of the demurrer to the indictment, not having been preserved by exceptions pendente lite, cannot be considered; the other special grounds of the motion for a new trial are without substantial merit; and.the verdict was authorized by the evidence.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

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Luke, J.

The defendant was charged with the offense of assault with intent to murder, and was convicted of that offense by the jury, who, under the “indeterminate-sentence act” (Ga. L. 1919, p. 387), fixed his sentence at not less than two years nor more than two years. The defendant made a motion for a new trial, on various grounds, one of which complained that the court failed _ to charge the jury that they might recommend that the defendant be punished as for a misdemeanor. The motion was overruled and the defendant excepted, and this court affirmed the judgment of the trial court (25 Ga. App. 483, 103 S. E. 731). Hpon certiorari, the Supreme Court reversed the judgment of this court, and held that the trial judge committed reversible error when he failed to instruct the jury, even without a request, that in the event they convicted the defendant of an assault with intent to murder they could recommend, if they saw fit, that he be punished as for a misdemeanor. It is therefore ordered that the former judgment of this court in this case be vacated; and the judgment of the trial court, overruling the motion for a 'new trial, is reversed solely on the above ground. The exception to the overruling of the demurrer to the indictment, not having been preserved by exceptions pendente lite, cannot be considered; the other special grounds of the motion for a new trial are without substantial merit; and.the verdict was authorized by the evidence.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

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107 S.E. 91, 26 Ga. App. 583, 1921 Ga. App. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-state-gactapp-1921.

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