The defendant was tried for burglary, and it was agreed that the jury might return a sealed verdict without prejudice to the rights of either party. On the next morning the following verdict was published in open court: “We, the jury, find the defendant Lester Smith guilty. Recommend mercy. • This 12th day of November, 1931. J. EL Underwood, foreman.” The presiding judge recharged the jury as to punishment, and the jury retired, struck from the verdict the words “recommend mercy,” and added thereto, under the signature of said foreman, the following words: “and fix his punishment not less one year not more than three years in penitentiary but recommend misdemeanor punishment.” The court sentenced the defendant to twelve months in the chain-gang and six months in jail, but provided that he might be relieved of the jail sentence upon the payment of $150 fine. The defendant filed a motion to arrest judgment, alleging that said second verdict was null, void, and of no effect, and that no legal sentence could be based thereon, because the jury had separated and mingled with other people after rendering the first verdict, and because the addition to the first verdict was under the signature of the foreman and entered the day after the signature of the foreman. The solicitor-general demurred generally to the motion to arrest the judgment. The trial judge sustained the demurrer and dismissed the motion to arrest the judgment; and to this the defendant excepted.
Though the verdict was extremely irregular, the court properly sustained the demurrer and dismissed the motion to arrest the judgment. See Pippin v. State, 172 Ga. 224 (157 S. E. 185); Id. 43 Ga. App. 16 (157 S. E. 913); Young v. State, 36 Ga. App. 308 (136 S. E. 459).
Judgment affirmed.
Broyles, G. J., and, JenTcins, P. J., concur.