
    21098.
    COOK v. THE STATE.
    Decided March 31, 1931.
    Rehearing denied April 14, 1931.
    
      
      0. L. Redman, Chester A. Byars, 8. B. Wallace, for plaintiff in error.
    
      E. M. Owen, solicitor-general, contra.
   Blood worth, J.

1. W. S. Cook was convicted under an indictment which charged that he “did wilfully and maliciously set ñre to and burn and attempt to burn an unoccupied dwelling house, located at 225 Ellis Street, in the City of Griffin.” The penalty fixed by law for this offense is that any person “upon conviction thereof be sentenced to the penitentiary for not less than two nor more than twenty years.” In charging the jury the judge erroneously told them that the punishment for this offense “shall be imprisonment and labor for not less than five years nor more than twenty years.” When the jury returned a verdict of guilty they fixed his penalty at five years. In a note to the grounds of the motion for a hew trial complaining of this error in the charge, the judge said: “The court discovered its error (complained of in these two grounds) immediately after the verdict was rendered, and on the same day reduced the penalty fixed by the jury from five to two years, and entered a judgment to that effect.” This action of the judge is alleged to be error. There is no insistence in the brief of counsel for ¡ilaintiff in error that the accused is not guilty. The jury convicted him believing that the minimum sentence would be five years; the judge reduced this to two years, and, under the verdict, this is the minimum punishment that he could receive; so the accused was not hurt by the charge given, and, by the action of the judge, he was relieved of three years’ service. We find no reason in either of the special grounds of the motion for a new trial why the judgment should be reversed.

2. There is ample evidence to support the verdict of guilty.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.  