1. A new trial will not be granted on account of allegedly prejudicial remarks made by the court in colloquy with counsel when overruling a motion in the presence of the jury, unless a motion for mistrial was made on the basis thereof.
2. (a) A transcript of the evidence, necessary for a determination of whether there was error in the charge, is ordered sent up.
(b) Where the defendant is charged under Code 26-1602 with inveighing a child who has parents, parent or guardian, the crime is against their rights and the consent of the child is immaterial.
3. An erroneous statement of the punishment that can be imposed for a misdemeanor in response to an inquiry by the jury is harmless in a felony trial since it is not within the province of the jury to make a determination as to the punishment to be imposed for a misdemeanor; that lies exclusively with the court.
4. If a portion of the sentence imposed for a misdemeanor is not in full accord with the law, the defendant should be resentenced.
William Sawyer, an unmarried male twenty years of age at the time of the alleged offense, was convicted of inveighing Barbara Joan Smith, a minor under the age of 18 years in violation of Code 26-1602.
The evidence disclosed that Barbara Joan Smith was sixteen years old when she met William Sawyer at a church meeting. He accompanied her home after the meeting, met her mother and stepfather and was invited by them to visit in the home on several occasions, sometimes for a meal. Later, however, the parents decided that it was inappropriate for Barbara Joan to keep company with Sawyer and, informing him of their determination in that respect, directed him to leave her alone, to stay away from her and not to return to their home. He did not go back to the home, but on numerous occasions talked with her on the telephone--most of the calls having been placed by the girl to him. She was attending high school and he met her a number of times near the school at recess or lunch time and took her away to a drive-in or other place, as a result of which she was absent from a great many of her classes. When it came to the attention of the parents that Sawyer was continuing to see Barbara Joan he was again instructed to desist and to leave her alone. On one occasion the girl and her sister left the house through the bedroom window at about midnight, got into the waiting car of the defendant and rode around with him until 4:30 or 5 a.m. before returning. Both the defendant and the girl testified that she had been the instigator of their meetings, that she had sent messages to him or had called him on the telephone and arranged with him to meet her at specified times and places, and that at no time had the defendant engaged in sexual relations with her. He did not desist from meeting and taking her to various places, however, until this prosecution was instituted by the taking out of a warrant.
While the jury was deliberating on the matter a request was made of the court that it inform the jury as to the punishment for a misdemeanor, and in response the court instructed that upon a conviction therefor a defendant could be sentenced to the payment of a fine of $1,000, confinement in jail for six months and work in the public works camp for 12 months--either, all or any part thereof that the court might determine. There is exception to that charge.
The jury returned a verdict finding the defendant guilty of a misdemeanor and fixing his punishment at six months in the county jail and that he be told not thereafter to be found in Columbus. Recognizing the incorrectness of the verdict the court instructed the jury that if they were to convict the defendant they were required to find him guilty of the offense charged, fix his punishment at a fixed number of years (having already informed them that it must be not less than four nor more than seven), but that if they desired to recommend punishment as for a misdemeanor the court would honor it, and sent them back to the jury room. Within a short time the jury returned a verdict finding the defendant guilty, fixing his punishment at four years and recommending that he be punished as for a misdemeanor. There is exception to the statement of the court that if the jury desired, in connection with a verdict of guilty, to recommend misdemeanor punishment it would be honored. Upon conviction, with the recommendation, defendant was sentenced, but not in full accord with the Act of 1964, p. 485, amending Code 27-2506.
His amended motion for new trial was denied. He appeals, enumerating as errors comments of the court made in connection with the overruling of a motion for a directed verdict of acquittal, the charge as to the elements of the offense, the charge as to the extent of misdemeanor punishment, a statement of the court that the recommendation of the jury would he followed, and the imposition of a misdemeanor sentence which was contrary to the provisions of law.
1. There was no motion for mistrial on account of the remarks of the court in connection with the overruling of the motion for a directed verdict of not guilty, and thus the exception as to them raises no question for decision. Morris v. State, 185 Ga. 67 (194 SE 214).
2. (a) In his notice of appeal the defendant specified that the transcript of the evidence should be omitted from the record to be sent up. However, no determination could be made of whether portions of the charge complained about were error without the benefit of the transcript. Accordingly, we ordered it sent up, as we are authorized to do under 13 (13) of the Appellate Practice Act of 1965. And see White v. Aiken, 197 Ga. 29 (113) (28 SE2d 263).
Moreover, the defendant, who appeals by pauper affidavit, is entitled to have the transcript provided, if needed, for a consideration of the errors alleged. Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891); Warden v. Brown, 372 U. S. 477 (83 SC 768, 9 LE2d 892); Draper v. Washington, 372 U. S. 487 (83 SC 774, 9 LE2d 899); Hardy v. United States, 375 U. S. 277 (84 SC 424, 11 LE2d 331). The offense under Code 26-1602 is a felony, and it is required that the evidence be reported. Code 27-2401.
(b) In the charge the court instructed the jury as to the elements of the offense for which the defendant was being tried, and in that connection instructed that "in this case the consent of the parent or guardian must be secured irrespective of the consent of the child. The consent of the child, Barbara Joan Smith, if she was of the age of sixteen years, as alleged in the indictment, would not excuse this defendant. Gentlemen, in this class of cases now being tried--this class of case--if you find this defendant took this child away without the consent of the parent, the crime is against the right of the parent or guardian of the child named in the indictment and not against the child . . . should you find beyond a reasonable doubt that the defendant carried the child named in this indictment to any place without the consent of the child's parent or guardian . . . you would be authorized to convict this defendant even though you should believe the child, Barbara Joan Smith, was the instigator of said carrying away . . ."
The evidence disclosed that the child was sixteen years of age during the period when the occasions of carrying her away from the school and from her home took place. Defendant contends that she was thus above the age of discretion and that if she consented to or was the instigator of the carrying away he could not be guilty of the offense charged, citing Hendon v. State, 10 Ga. App. 78 (72 SE 522). In Hendon it was held that "Where the child alleged to have been inveigled is above the age of discretion, though under the age of 18, these elements are not sufficiently made out by showing that the child went away in company with the defendant, especially where the State's own evidence shows that the child went of its own free will and accord . . ." but that holding is in direct conflict with the unambiguous provisions of Code 26-1602 and with the holdings of the Supreme Court in Gravett v. State, 74 Ga. 191; Thweatt v. State, 74 Ga. 821; and Sutton v. State, 122 Ga. 158 (50 SE 60). Accordingly, the holding of Hendon cannot be followed. We are bound by the provisions of the Code section and the rulings of the Supreme Court. These have been followed, and the true rule was announced in Arrington v. State, 3 Ga. App. 30 (59 SE 207); Bryant v. State, 21 Ga. App. 668 (94 SE 856); Summer v. State, 55 Ga. App. 185 (189 SE 687); Hill v. State, 74 Ga. App. 235 (39 SE2d 447), and Le Croy v. State, 77 Ga. App. 851 (50 SE2d 148). In Boatright v. State, 57 Ga. App. 193 (194 SE 837), where the child had neither parent nor guardian, it was held that the crime was against the child and a necessary element of the offense in that event would be lack of its consent.
The General Assembly, in adopting the Code section, declared the public policy of the State on the matter. If that has changed by reason of modern customs and ideas of living, then the remedy lies in a changing of the Code section. We have no right or power to do it. We may observe, however, that with the ever increasing rate of juvenile delinquency in this country the policy declared in adopting the Code section may not be out of keeping with the needs of these times. Parents who strive to give their children a proper upbringing by providing a wholesome environment during their juvenile years, and who try to keep them in school to acquire the sorely needed education for meeting the needs of these days should be afforded not only the encouragement, but also the help of the law in accomplishing it. Even though this child may have foolishly called the defendant or sent him messages, as she and he testified, arranging trysts by which he would take her away from school where her parents had placed her in accordance with the requirements of law, he cannot be excused on that ground, and particularly when, as here, he had been directed by the parents to desist and to leave the child alone. We find no error in this portion of the charge.
3. It is conceded by the State that the judge wrongfully informed the jury, in response to an inquiry during deliberations, as to the punishment that could be imposed for a misdemeanor when he stated it in terms of the law as it existed prior to the Act of 1964 (Ga. L. 1964, p. 485) amending Code 27-2506. Since, however, the determination of what punishment is to be imposed in honoring a recommendation of punishment as for a misdemeanor in connection with a felony convictions exclusively for the court and is not within the province of the jury, (the punishment for a misdemeanor, whether under the law as it existed before or after the Act of 1964, being less than the minimum for the felony), the error is harmless. Cf. Melton v. State, 186 Ga. 660 (3) (198 SE 695). No basis for the granting of a new trial appears unless there is harm as well as error. Williams v. State, 180 Ga. 595 (3) (180 SE 101); Marshall v. State, 63 Ga. App. 183, 187 (9) (10 SE2d 240).
4. The court, accepting the recommendation that the defendant be punished is for a misdemeanor, imposed a sentence which was not altogether in conformity with the provisions of the Act of 1964, but this is not ground for granting a new trial. However, the defendant is entitled to have sentence imposed in accordance with the statute, and thus we affirmed remand with direction that the court proceed to re-sentence him in a manner that accords with the Act of 1964, amending Code 27-2506. See Hathcock v. State, 88 Ga. 91 (5) (13 SE 959)
; Roper v. Mallard, 193 Ga. 684 (1) (19 SE2d 525)
; Davis v. State, 30 Ga. App. 183 (117 SE 267)
; King v. State, 103 Ga. App. 272 (3) (119 SE2d 77)
, and citations.
Judgment affirmed with direction. Nichols, P., J., and Pannell, J., concur.