
    16638.
    SIMPSON v. THE STATE.
    The motion to arrest the judgment, on the ground that the penalty named in it was not fixed by the verdict, the penalty being written under and not above the foreman’s signature to the verdict, was properly overruled.
    Decided November 10, 1925.
    Conviction of making liquor; from Cobb superior court—Judge Blair. June 1, 1925.
    
      J. B. Mozley, H. B. Moss, for plaintiff in error.
    
      John 8. Wood, solicitor-general, contra.
   Broyles, C. J.

The indictment contained two counts, the first charging the accused with manufacturing whisky, and the- second with possessing apparatus used for the distilling of intoxicating liquors. The jury returned the following verdict: “We, the jury, find the defendant guilty of the first account

Homer Hicks, Foreman

and fix his penalty from 2 years.to 4 years.” The court thereupon entered up judgment and sentence requiring the defendant to serve from two to four years in the penitentiary. During the same term of court the defendant made a motion in arrest of judgment, upon the ground that the verdict did not fix the penalty, as the writing fixing the penalty was written below and after the signature of the foreman of the jury, and, therefore, could not legally be considered as part of the verdict. This motion was overruled. Held: No error. See, in this connection, Browning v. State, 31 Ga. App. 150 (6) (120 S. E. 649).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  