Thompson v. State , 151 Ga. 328 ( 1921 )

Fish, C. J.

1. The indeterminate-sentence act (Acts 1919, p. 387) did not repeal section 1062 of the Penal Code of 1910, which provides that on the recommendation of the jury trying the case, when such recommendation is approved by the presiding judge, the punishment of a felony other than one of those enumerated in such section shall be as provided for misdemeanors.

2. It was error requiring the grant of a new trial for the court to fail to charge the jury, on the trial of one charged with the offense of assault with intent to murder, that in the event of conviction they could recommend, if they saw fit, that the defendant be punished as for a misdemeanor. Moore v. State, 150 Ga. 679 (104 S. E. 907).

3. Applying these rulings to one of the grounds of the motion for new trial, the Court of Appeals erred in sustaining the judgment of the trial court refusing a new trial.

Judgment reversed.

All the Justices concur, except George, J., absent.