
    LYDIA BRIGHTWELL, plaintiff in error, v. THE STATE OF GEORGIA, defendant in error.
    (Atlanta,
    January Term, 1871.)
    ARSON—DAY ARSON—NIGHT ARSON—PROVISION AS TO PUNISHMENT DIRECTORY—INDICTMENT—Section 4318 of the Revised Code, providing that “arson in the day time shall be punished by a shorter period of imprisonment and labor than arson committed in the night” is directory only to the Judge in the exercise of his discretion as to the number of years for which he shall sentence one convicted of arson, and it is not necessary in the indictment to charge that the offense was committed in the day or in the night.
    Arson. Arrest of Judgment. Before Judge Harrell. Webster Superior Court. September Term, 1870.
    Lydia Brightwell was tried for arson in said Court, upon an indictment which charged her with burning an out-house “on the 17th of May,” 1870, without stating whether she did so in the day time or night. The jury returned a verdict of “guilty.” Her counsel moved to arrest the judgment because the indictment did not show, nor did the verdict find, whether the burning was in the day time or in the night. The court overruled the motion, and that is assigned as error.
    Hawkins & Burke, for plaintiff in error,
    cited sec. 4310 et seq., and said punishment of arson in day and night time was different.
    *S. W. Parker, Solicitor General, C. T. Goode, for the State,
    cited 13th Ga. R., 435; Irwin’s Code, secs. 4313, 4314, 4535, 4536.
   McCAY, J.

When the law prescribes a different punishment for different phases of the same crime, there is good reason for requiring the indictment to specify which of the phases the prisoner is charged with. The record ought to show that the defendant is convicted of the offense for which he is sentenced. But this is not the case here. The punishment for ‘ arson of an outhouse, not in a city or town, is from two to seven years: Revised Code, section 4313. There is no provision that arson in the night shall be punished for any different period.

It is true section 4318 of the Code provides that “arson in the day time shall be punished for ,a less period than arson in the night time.” But' what is this but a rule for the exercise of the -discretion of the Court in selecting the point between two and seven years where he will fix the sentence. In every case it is the duty of the Judge to consider, in fixing the penalty, all the circumstances of mitigation or aggravation. And in this case it is his duty to consider whether the offense was done at night or in the day. This is only one of the circumstances for the consideration of the Judge, and is not one of the ingredients of the -crime. It stands upon the footing of a charge of murder, based on circumstantial evidence, or of a battery committed under strong provocation. In neither of such cases need the indictment show the peculiarity of the case. It is matter for the Judge alone, and even with him it is only a rule for the exercise of his discretion.

Judgment affirmed.  