Legal Opinion

McWhorter v. State

Supreme Court of Georgia

Decided May 30, 1903PublishedCited by 35 opinions

Indictment for burglary. Before Judge Felton. Bibb superior court. March 31, 1903. The indictment charged that Eugene McWhorter and Bud Chapman did break and enter the storehouse of D. F. Long, with the intent to commit a larceny therein, and did steal therein fifteen dollars and a knife. They severed. McWhorter was found guilty, and sentenced to a term of twenty years in the penitentiary. He excepted to the overruling of his motion for a new trial.

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Indictment for burglary. Before Judge Felton. Bibb superior court. March 31, 1903. The indictment charged that Eugene McWhorter and Bud Chapman did break and enter the storehouse of D. F. Long, with the intent to commit a larceny therein, and did steal therein fifteen dollars and a knife. They severed. McWhorter was found guilty, and sentenced to a term of twenty years in the penitentiary. He excepted to the overruling of his motion for a new trial. The motion alleged, heside the general grounds, that the court erred: 1. In giving the maximum sentence, and in stating, as a ground for so…

1Opinion of the CourtLamar, J.

The plaintiff in error insists that the maximum penalty under the Penal Code, §1042, could not be legally imposed on him, as the fact of the former conviction was not set out in the indictment and fouud by tbe jury. Where the second conviction changes the grade of the offense, or authorizes a higher penalty than could otherwise have been imposed, the former conviction enters as an element into, the new offense, and must be alleged as *57a necessary part of the description and character of the crime intended to be punished. State v. Hines, 26 Ga. 614; Cobb’s Dig. 827. Under the code the…

2Cases cited5 opinions

  1. May v. StateSupreme Court of Georgia · 1893
  2. Hines v. StateSupreme Court of Georgia · 1859
  3. Collins v. StateSupreme Court of Georgia · 1892
  4. Leonard v. StateSupreme Court of Georgia · 1886
  5. Cotton States Life Insurance v. CarterSupreme Court of Georgia · 1880

3Cited by35 opinions

  1. Massey v. United StatesCourt of Appeals for the Eighth Circuit · 1922
  2. Jones v. StateSupreme Court of Georgia · 1908
  3. Harrison v. StateTennessee Supreme Court · 1965
  4. Wallace v. MizeSupreme Court of Georgia · 1922
  5. Pippins v. StateSupreme Court of Georgia · 1968

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