
    11562.
    THOMPSON v. THE STATE.
    Where one charged with an assault with intent to murder is convicted of that offense and given the minimum punishment by the jury, failure of the trial judge to instruct the jury, even in the absence of a request, that, if they found the defendant guilty as charged, they could recommend, if they saw lit, that he be punished as for a misdemeanor, is reversible error.
    Decided April 13, 1921.
    Indictment for assault with intent to murder; from Forsyth superior court — Judge Blair. April 24, 1920.
    
      J. P. Brooke, for plaintiff in error.
    
      John T. Dorsey, solicitor-general, William Butt, contra.
   Luke, J.

The defendant was charged with the offense of assault with intent to murder, and was convicted of that offense by the jury, who, under the “indeterminate-sentence act” (Ga. L. 1919, p. 387), fixed his sentence at not less than two years nor more than two years. The defendant made a motion for a new trial, on various grounds, one of which complained that the court failed _ to charge the jury that they might recommend that the defendant be punished as for a misdemeanor. The motion was overruled and the defendant excepted, and this court affirmed the judgment of the trial court (25 Ga. App. 483, 103 S. E. 731). Hpon certiorari, the Supreme Court reversed the judgment of this court, and held that the trial judge committed reversible error when he failed to instruct the jury, even without a request, that in the event they convicted the defendant of an assault with intent to murder they could recommend, if they saw fit, that he be punished as for a misdemeanor. It is therefore ordered that the former judgment of this court in this case be vacated; and the judgment of the trial court, overruling the motion for a 'new trial, is reversed solely on the above ground. The exception to the overruling of the demurrer to the indictment, not having been preserved by exceptions pendente lite, cannot be considered; the other special grounds of the motion for a new trial are without substantial merit; and.the verdict was authorized by the evidence.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.  