
    Guthrie v. The State.
    Argued April 17,
    Decided May 11, 1906.
    Indictment for assault with intent to murder. Before Judge Gober. Cobb superior court. March-14, 1906.
    
      E. E. Clay and Griffin & Attaway, for plaintiff in error.
    
      B. F. Simpson, solicitor-general, contra.
   Fish, C. J.

1. Where the accused is found guilty of a felony, not excepted from the provisions of Penal Code, § 1036, and the jury trying the ease recommends that he be punished as for a misdemeanor, it is in the absolute discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final.

2. That a sentence is excessive is not cause for a new trial. Hill v. State, 122 Ga. 166.

3. The evidence, though wholly circumstantial, being not only consistent with the hypothesis of the guilt of the accused, but sufficient to exclude every other reasonable hypothesis save that of his guilt, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.  