In all capital cases, other than those of homicide, when the verdict is "guilty," with a recommendation for mercy, it shall be legal and shall mean imprisonment for life. When the verdict is "guilty," without a recommendation for mercy, it shall be legal and shall mean that the convicted person shall be sentenced to death. When it is shown that a person convicted of a capital offense without a recommendation for mercy had not reached his seventeenth birthday at the time of the commission of the offense, the punishment of such person shall not be death but shall be imprisonment for life.
(Ga. L. 1875, p. 106, § 2; Code 1882, § 4646a; Penal Code 1895, § 1034; Penal Code 1910, § 1060; Code 1933, § 27-2302; Ga. L. 1963, p. 122, § 2; Ga. L. 1974, p. 352, § 2.)
Cross references.- Further provisions regarding jury recommendations in death penalty cases, § 17-10-2.
Finding by jury of statutory aggravating circumstance and recommendation of death sentence as prerequisites to imposition of death sentence, § 17-10-31.
U.S. Code.- Verdicts, Federal Rules of Criminal Procedure, Rule 31.
Law reviews.- For article discussing the 1968 Criminal Code of Georgia, comparing preexisting provisions of Georgia criminal law, see 5 Ga. St. B.J. 185 (1968). For article, "Jury Sentencing in Georgia - Time for a Change?," see 5 Ga. St. B.J. 421 (1969). For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "The Execution of America's Children," see 6 Ga. State U.L. Rev. 403 (1990).
JUDICIAL DECISIONS
Applicability to homicide cases.
- Last sentence of O.C.G.A. § 17-9-3 applies to cases of homicide, the legislature having intended to create a general prohibition against the execution of persons who had not reached their 17th birthday at the time of the commission of the offense. Bankston v. State, 258 Ga. 188, 367 S.E.2d 36 (1988).
Verdict and not the indictment determined when this section applied. Cox v. State, 33 Ga. App. 144, 125 S.E. 731 (1924).
Judge may not give different sentence than law requires when guilty plea.
- This section did not permit the judge, on a plea of guilty, to fix a different sentence than that prescribed by a particular section. Morris v. Clark, 156 Ga. 489, 119 S.E. 303 (1923).
Jury recommendation is binding.
- In jury cases, the trial judge is bound by the jury's recommended sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Charge cannot take away jury's role.
- Charge depriving the jury of the right and duty devolving upon the jury by this section was erroneous. Thompson v. State, 160 Ga. 520, 128 S.E. 756 (1925).
When applicable, this section should be charged. Butt v. State, 150 Ga. 302, 103 S.E. 466 (1920).
Charge that gave the substance of this section would suffice. Lewis v. State, 25 Ga. App. 7, 102 S.E. 367 (1920).
Jury has power to fix minimum and maximum sentence after plea of innocence.
- Power given to the jury to prescribe a minimum and maximum term is emphasized by the further provision that "in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit." Mitchell v. State, 34 Ga. App. 505, 130 S.E. 355 (1925).
Effect of jury failing to fix maximum and minimum.
- If the jury fails to prescribe the maximum and minimum in a burglary case but merely recommends the defendant to the mercy of the court, the verdict is not in proper form, and it is error for the judge to receive the verdict and fix the minimum and maximum term of punishment. The judge should send the jury back with the instruction that the jury fix the minimum and the maximum penalty. Mitchell v. State, 34 Ga. App. 505, 130 S.E. 355 (1925).
Verdict of the jury fixing the same maximum and minimum is sufficient. Powell v. State, 25 Ga. App. 329, 103 S.E. 174 (1920); Johnson v. State, 154 Ga. 806, 115 S.E. 642 (1923).
Defendant has right to poll jury.
- If the jury returns a maximum-minimum sentence and the judge immediately turns to the accused and states that that would be the accused's sentence, the accused is not deprived of the right to poll the jury. The accused has this privilege while the verdict is being reduced to writing and retired as a judgment. Taylor v. State, 36 Ga. App. 639, 138 S.E. 83 (1927).
Abuse of jury's discretion is not reviewable.
- Whether or not a jury has abused the unlimited discretion given a jury by law, in regard to recommending a defendant to the mercy of the court, under which the defendant would be sentenced to life imprisonment, is in no instance subject to review by the courts. Aiken v. State, 170 Ga. 895, 154 S.E. 368 (1930).
Death sentence on seventeen year old.
- If the defendant was 17 years old at the time of the crime, the defendant's death sentence does not violate O.C.G.A. § 17-9-3. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).
Cited in Towns v. State, 149 Ga. 613, 101 S.E. 678 (1919); Daniel v. State, 24 Ga. App. 557, 101 S.E. 812 (1919); Walker v. Dorminey, 150 Ga. 635, 104 S.E. 447 (1920); Moore v. State, 150 Ga. 679, 104 S.E. 907 (1920); Thompson v. State, 151 Ga. 328, 106 S.E. 278 (1921); Durden v. State, 152 Ga. 441, 110 S.E. 283 (1921); Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968); Holmes v. State, 224 Ga. 553, 163 S.E.2d 803 (1968); Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21A Am. Jur. 2d, Criminal Law, § 843 et seq. 40A Am. Jur. 2d, Homicide, § 499 et seq. 75A Am. Jur. 2d, Trial, §§ 471 et seq., 1157 et seq.
C.J.S.- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2203 et seq.
ALR.
- Bail: imposition of life sentence as affecting capital character of offense, 3 A.L.R. 970.
Recommendation of mercy in criminal case, 87 A.L.R. 1362; 138 A.L.R. 1230.
Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.