
    21189.
    HARRIS v. STATE OF GEORGIA et al.
    
    Submitted March 13, 1961
    Decided April 6, 1961.
    
      E. B. Burdine, Donald M. Harris, pro se, for plaintiff in error.
    
      B. Daniel Dubberly, Jr., Deputy Assistant Attorney-Gen
      
      eral, Eugene Cook, Attorney-General, Earl L. Hickman, Assistant Attorney-General, contra.
   Head, Presiding Justice.

Donald M. Harris was convicted on September 11, 1958, in the Superior Court of Fulton County-on an indictment in two counts charging him with the offense of robbery by “use of an offensive weapon” (Ga. L. 1957, pp. 261, 262, Code Ann. Supp. § 26-2501). The jury on each count fixed the term of imprisonment as “a minimum of eight (8) years and a maximum of twenty (20) years,” and recommended “treatment as a misdemeanor.” On the same date the trial judge imposed a sentence on each count for a term of not less than 8 years and not more than 20 years, and provided that the sentence on count 2 should follow the sentence on count 1. In his petition for writ of habeas corpus, the prisoner contended that the jury’s recommendation “is binding on the court” and that he is “confined on a felony offense” contrary to the recommendations of the trial jury. The Judge of the Superior Court of Tattnall County declined to issue the writ, and the exception is to this judgment. Held:

Code § 27-2501, as amended, Ga. L. 1939, pp. 285, 287, provides that all felonies (except those named) shall be punished “for the terms provided by law; but on the recommendation of the jury trying the case, when such recommendation is approved by the judge presiding on the trial, said crimes” shall be punished as misdemeanors. This provision of our law was first enacted in 1895 (Ga. L. 1895, p. 63). It has been the rule since the passage of the act of 1895 that it is in the “discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final.” Guthrie v. State, 125 Ga. 291 (1) (54 S. E. 180); Johnson v. State, 100 Ga. 78 (25 S. E. 940); Taylor v. State, 110 Ga. 150 (35 S. E. 161); Daniel v. State, 118 Ga. 16 (43 S. E. 861); Oliver v. Lowry, 173 Ga. 892 (161 S. E. 828). In the present case, the allegations of the petition were insufficient to authorize the discharge of the prisoner.

Judgment affirmed.

All the Justices concur.  