Scoggins v. State , 27 Ga. App. 192 ( 1921 )

Bloodworth, J.

1. A plea of former jeopardy was filed in this case, and on November 22, 1920, it was stricken. To this ruling no exception was taken. On January 24, 1921, the case coming on for a second trial after a mistrial, counsel for the defendant again insisted on his special plea, and the judge presiding passed the following order: "After hearing this motion to strike this plea of former jeopardy, the same is hereby sus-' tained upon the ground that the same has been passed on and sustained at the present term of this court by Hon. J. E. Terrell, presiding in this court on November 22, 1920.” The certificate to the bill of exceptions is dated March 10, 1921. On January 29, 1921, counsel for the defendant filed exceptions pendente lite to the order striking the special plea, but in the bill of exceptions there is no assignment of error on the exceptions pendente lite; though error is assigned on the ruling of the court' striking the plea. This court cannot consider the alleged error in striking the special plea, because the bill of exceptions was signed more than twenty days after the date of the order complained of (Scarboro v. State, 24 Ga. App. 27 (3-a), 28 (3-a), 99 S. E. 637), and cases cited), and in the bill of exceptions error is not assigned on the exceptions pendente lite. Ponder v. State, 25 Ga. App. 768 (105 S. E. 318); Devereaux v. State, 26 Ga. App. 429 (106 S. E. 740), and cases cited; Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458, 461 (107 S. E. 260). (Note: See subsequent legislation, Ga. L. 1921, p. 233.)

2. It is insisted that certain excerpts from the charge which are incorporated in the motion for a new trial are erroneous, because “the record fails to show any violence on the part of the defendant or that she took any part in the robber}>-, and therefore it was error to charge upon force and violence;” “there was no conspiracy shown in the case;” “the charge was argumentative.” These points are not well taken. The charge was not argumentative; there was abundant evidence to show violence, and ample evidence from which the jury could infer a conspiracy, “which may be established by proof of acts and conduct as well as by direct proof or express agreement.” Bolton v. State, 21 Ga. App. 184, 188 (94 S. E. 95), and cases cited.

3. Certain grounds of the motion allege error because the verdict was contrary to certain specified portions of the charge. “ A ground of a motion for a new trial complaining that the finding of the jury was contrary to certain specified portions of the charge amounts merely to a complaint that the verdict was contrary to law, and the general grounds of the motion cover that exception. Brannan v. McWilliams, 146 Ga. 528 (4) (93 S. E. 772). See also Seaboard Air-Line Railway v. Vaughn, 19 Ga. App. 398 (2-c) (91 S. E. 516); Ga. Northern Ry. Co. v. Sharp, 19 Ga. App. 504 (3) (91 S. E. 1045).

4. The jury returned the following verdict: “We, the jury, find the defendant guilty, and recommend her to the extreme mercy of the court.” It is alleged that this “ is an illegal verdict, that it is unauthorized by law, that the jury should have fixed a minimum and maximum punishment in the case, but they left it to the trial judge to fix the punishment,” and it is insisted that the judge should have sent the jury back in order that they might make a legal verdict and fix the minimum and maximum punishment^” If this had been done, the minimum punishment which the jury could have fixed would have been one year in the penitentiary. The trial judge treated the verdict Tendered as one recommending that-the accused be punished as for a misdemeanor, and in the note to this ground of the motion for a new trial he said: “ The sentence imposed was a misdemeanor sentence, being twelve months on the State farm, in lieu of a sentence to serve on the county chain-gang.” The verdict being thus treated, the form in which it was returned did no harm to the cause of the defendant.

5. The trial judge having approved the finding of the jury, and there being evidence to support the verdict, this court, in the absence of any error of law, cannot interfere.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.