
    17775.
    Young v. The State.
    Decided January 11, 1927.
    Making intoxicating liquor; from DeKalb superior court — Judge Hutcheson. September 11, 1936.
    Application for certiorari was denied by the Supreme Court.
    
      Branch & Howard, for plaintiff in error.
    Criminal Law, 16 C. J. p. 1114, n. 45; p. 1115, n. 55.
   Broyles, C. J.

The accused was being tried for the offense of manufacturé ing whisky, and the following verdict was returned: “We, the jury, find the defendant guilty, and recommend it be treated as a misdemeanor.” The verdict was received in open court, and published, and the jury dispersed, taking their seats in various parts of the court-room. A few minutes later the court recalled the jury to the jury box, and inquired of each juror if, since the verdict was published, he had spoken to any one about the case, or if any one had spoken to him about the case and each juror answered the questions in the negative. The court thereupon stated to the jury that he had charged them that if they found a verdict of guilty it would be their duty to fix a minimum and a maximum sentence of not less than one year nor greater than five years. The court then again correctly charged them upon their duty to fix a minimum and maximum sentence and instructed them to retire. The jury thereupon retired to the jury room and subsequently returned the following verdict: “We, the jury, find the defendant guilty, and fix the minimum and maximum penalty one year, and recommend it be treated as a misdemeanor,” the original verdict being altered •by the insertion therein of the words “and fix the minimum and maximum penalty one year.” This verdict was received in open court and published, and the court thereupon sentenced thg defendant to be put to work and labor on the public works of the county of DeKalb for the term of six months. During the same term of court the defendant .filed a motion to vacate and set aside the verdict and judgment, on the ground “that the verdict upon which said judgment was based - was illegal, and that no legal judgment or sentence could be predicated thereon, and that the judgment against defendant was therefore illegal, for the reason that it was improper and illegal,for the court,to permit the jury to reassemble and to resubmit the ease to the jury under the circumstances as set out in said motion.” Seld, that the denial of the motion to vacate and set aside the verdict and judgment was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.  