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86 Ga. App. 160

Arnold v. State

Court of Appeals of Georgia

Decided May 20, 1952

Court of Appeals of Georgia · decided 1952-05-20

Cited by 1 later decisions — most recently November 1974

1 state decisions

Key passage — most relied on by later courts

“The punishment for larceny of a hog is fixed by statute at `not less than two nor more than four years.' Code §§ 26-2611, 26-2609. Code § 59-805 provides that, at the trial of every offense which may subject the defendant to `death or imprisonment in the penitentiary for not less than four years,' the defendant may peremptorily challenge twenty jurors from those impaneled to try him. The term `not less than' four years in Code § 59-805 includes the amount of exactly four years. (Citations omitted.) Further, the term 'not more than four years' in Code § 26-2609 means `not exceeding four years,' and includes the amount of exactly four years. (Citations omitted.) On the trial of each of these cases a punishment of exactly four years might have been inflicted, and as such sentence is included within the terms of Code § 59-805, supra, the trial court erred in allowing the defendants no more than 12 peremptory challenges.”

quoted by 1 later decision, including 133 Ga. App. 420 - Lowe v. State

Relies on O'Day v. People · State v. Vashon · Pickett v. Smith

Good law ✅— No negative treatment on recordhow we know

Decided 1952-05-20

View the full empirical analysis of this case →

Townsend, J.

¶1The punishment for larceny of a hog is fixed by statute at “not less than two nor more than four years.” Code, §§ 26-2611, 26-2609. Code § 59-805 provides that, at the trial of every offense which may subject the defendant to “death or imprisonment in the penitentiary for not less than four years,” the defendant may peremptorily challenge twenty jurors from those impaneled to try him. The term “not less than” four years in Code § 59-805 includes the amount of exactly four years. Worth v. Peck, 7 Pa. (7 Barr) 268, 272; In re Gregg’s Estate (Pa.) 62 Atl. 856, 857; O’Day v. People, 114 Colo. 373 (166 Pac. 2d, 789). Further, the term “not more than four years” in Code § 26-2609 means “not exceeding four years,” and includes the amount of exactly four years. State v. Vashon, 123 Me. 412 (123 Atl. 511); Pickett v. Smith, 95 Ga. 757 (1) (22 S. E. 669). On the trial of each of these cases a punishment of exactly four years might have been inflicted, and as such sentence is included within the terms of Code § 59-805, supra, the trial court erred in allowing the defendants no more than 12 peremptory challenges.

¶2Judgments reversed.

Gardner, P.J., and Carlisle, J., concur.Smith & Smith, for plaintiff in error in case No. 34073.J. B. Walker, Solicitor-General, Kopp & Peavy, contra. Herbert W. Wilson, Leon A. Wilson II, for plaintiff in error in case No. 34074.J. B. Walker, Solicitor-General, Kopp & Peavy, contra.
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