
    17069.
    Lee v. The State.
    Criminal Law, 16 C. J. p. 1114, n. 45; 17 C. J. p. 362, n. 96.
    Decided April 14, 1926.
    Indictment for distilling, etc.; from Douglas superior court-judge Irwin. December 11, 1935.
    Application for certiorari was made to the Supreme Court.
    
      J. B. Hutcheson, Aslor Merritt, for plaintiff in error.
    
      E. S. Griffith, solicitor-general, contra.
   Broyles, C. J.

The plaintiff in error was charged with manufacturing whisky, and the jury returned the following verdict: “We, the jury, find the defendant guilty [and] ask [the] mercy of the court.” Thereupon the accused was given a misdemeanor sentence. At the same term of the court he presented a motion to arrest the judgment, based upon the allegation that the verdict was not a legal one, under the indeterminate-sentence statute, in that no minimum and maximum penalty was fixed by the verdict. The motion was overruled and the defendant excepted. Held: The verdict was not in proper form, and the judge should have sent the jury back to their room with instructions to fix a minimum and maximum penalty. Mitchell v. State, 34 Ga. App. 505 (130 S. E. 355). However, as the judge followed the recommendation of the jury and imposed a misdemeanor sentence, the defendant has no cause to complain, and the refusal to arrest the judgment was not error.

Judgment affirmed.

Lulce, J., concurs. Bloodworth, J., not participating, on account of illness.  