1. Where to a murder indictment, a plea of not guilty was entered, and a verdict reading, "We the jury find the defendant [?] and recommend him to the mercy of the court. This Oct. 7, 1941. Samuel Rothberg, Foreman," was returned — such verdict could have no meaning except that the jury had found a verdict of guilty with a recommendation to mercy, and a sentence to life imprisonment predicated thereupon is a valid judgment.

2. The applicant seeking discharge, after conviction, under a writ of habeas corpus, and the sentence which he attacked being a valid judgment, it was demanded that the court remand him to the custody of the warden; therefore it becomes unnecessary to pass upon the other questions presented by the writ of error.

No. 15304. JANUARY 8, 1946. REHEARING DENIED FEBRUARY 21, 1946.

James Jackson filed a petition for the writ of habeas corpus before the judge of the Superior Court of Fayette County. A writ was issued directed to Roy Houston, warden of that county. The applicant insisted that he was being illegally restrained of his liberty, and was "confined in the county chain-gang camp" by the warden under a void verdict and an illegal sentence of the Superior Court of Fulton County. It was alleged that this confinement was in violation of the due-process clauses of the Constitutions of the United States (Code, § 1-805) and of Georgia (§ 2-103), and also of the Code, § 27-2509, providing that punishment may be inflicted only upon a legal conviction.

On the hearing the applicant introduced a copy of the Fulton County indictment together with all entries thereon. The indictment charged him with the murder of Sarah Jackson in Fulton County by shooting her with a pistol. Upon the back of the indictment was a return of a "true bill" signed by the foreman, a plea of not guilty signed by the solicitor-general and attorneys for the accused, and the following verdict: "We the jury find the defendant [?] and recommend him to the mercy of the court. This Oct. 7, 1941. Samuel Rothberg, Foreman." On the back of the indictment the words "Consent Verdict" were written. The applicant also introduced the sentence of the court, which after stating the case and the number thereof was headed, "Verdict of guilty rec.," and was followed by a sentence to life imprisonment signed by the judge.

The warden introduced the entry shown on the bench docket, which, after stating the case and number, contained the following: "H. M. D. Murder Consent Verdict of Guilty Rec. Mercy — Life. 10-7-41;" and also a certificate of authority to hold the prisoner, issued by the State Department of Corrections. The warden also introduced two affidavits from the attorneys who represented the applicant under the murder charge, which affidavits, in substance, set forth that when the case was called for trial in Fulton Superior Court, the solicitor-general, the attorneys, and the applicant all agreed, with the consent of the court, to permit the jury to return a verdict of guilty with a recommendation of mercy in said case. The affidavits of the attorneys further set forth that though the verdict, by oversight, omitted the word "guilty," this was unknown to the attorneys and applicant at the time it was signed by the foreman and at the time the sentence was imposed, and that upon the return of the verdict the assistant solicitor-general stated in open court that the jury had returned a verdict of guilty and recommended the defendant to the mercy of the court. The applicant objected to the admission in evidence of these two affidavits.

At the conclusion of the hearing, the court remanded the applicant to the custody of the warden. The exception is to this judgment.

ATKINSON, Justice. (After stating the foregoing facts.)

1. A discharge under a writ of habeas corpus, after a conviction, can not be granted unless the judgment is absolutely void. Aldredge v. Williams, 188 Ga. 607 (1) ( 4 S.E.2d 269); Stewart v. Sanders, 199 Ga. 497 (1) ( 34 S.E.2d 649). The question presented for determination is whether a valid sentence may be imposed in a criminal case where the verdict does not specifically specify the word "guilty." "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code, § 110-105; Carter v. State, 8 Ga. App. 471 (1, 2) ( 69 S.E. 588). The presumptions are in favor of the validity of the verdict of a jury, and if possible a construction will be given that will uphold it. Atlantic Birmingham Railway Co. v. Brown, 129 Ga. 622 (4) ( 59 S.E. 278); Swain v. Georgia Power Light Co., 46 Ga. App. 794 (1) ( 169 S.E. 249). "Where a verdict may, by a reasonable construction, be understood, and a legal judgment can be entered thereon, it is sufficient." Williams v. Brown, 57 Ga. 304 (4). "All that is essential to a valid verdict is substantial certainty to a common and reasonable intent." Short v. Cofer, 161 Ga. 587 (1) ( 131 S.E. 362). A verdict is certain which can be made certain by what itself contains or by the record. Giles v. Spinks, 64 Ga. 205, 207 (3); McWilliams v. Walthall, 65 Ga. 109 (2); Seifert v. Holt, 82 Ga. 757 (2) ( 9 S.E. 843); Smith v. Cooper, 161 Ga. 594 ( 131 S.E. 478); Stanfield v. Downing Co., 186 Ga. 568 ( 199 S.E. 113); Bentley v. Still, 198 Ga. 743 ( 32 S.E.2d 814). "In every verdict there must be a reference to the indictment and the issue to make it have any meaning. The verdict is the response of the jury to the charge and to the issue formed upon it." Arnold v. State, 51 Ga. 144, 145.

While the question here presented has not been passed upon by either of the courts of review of this State, it is clear from the foregoing rules of construction that the verdict is valid, and is sufficient to predicate a legal sentence. The indictment in question was for murder by shooting with a pistol, and included the offense of voluntary manslaughter and the two grades of involuntary manslaughter. The punishment for either kind of manslaughter would have to be fixed in terms of years, and from the failure of the verdict to make any reference thereto, it is manifest that neither grade of manslaughter was intended. Therefore the indictment, plea of not guilty, and verdict must be considered solely in its relation to murder. So approaching the question, there could have been but three verdicts, to wit, not guilty, guilty, and guilty with a recommendation to mercy. It is manifest that it was not a verdict of "guilty" such as would mean the death penalty, or "not guilty;" and the phrase, "and recommend him to the mercy of the court," cannot be brushed aside or treated as surplusage, but must be given force and effect, as it has a positive and definite meaning in our law when applied to a verdict on a murder charge. Under the Code, § 26-1005, it is provided that, "whenever a jury, in a capital case of homicide, shall find a verdict of guilty, with a recommendation of mercy, . . such verdict shall be held to mean imprisonment for life." Upon an indictment for murder with a plea of not guilty, no other legal meaning can be given to the verdict containing the words, "and recommend him to the mercy of the court," except that it authorized a sentence of life imprisonment. By giving to this verdict, in connection with the indictment and plea, a reasonable intendment and construction, it can be understood and made certain to a common and reasonable intent; and though the word "guilty" is not contained therein, when considered along with the indictment and plea, it could have no meaning except that the jury had found a verdict of guilty with a recommendation to mercy, and such an interpretation is clear and unequivocal.

2. The foregoing application of the rules of law to the verdict and sentence demanded that the court remand the applicant to the custody of the warden. Therefore no consideration of the effect of the entries made upon the indictment or the bench docket, as illustrating whether this was a consent verdict, is necessary. Nor is any ruling required upon the question of the admission of extrinsic evidence contained in affidavits of the two attorneys.

Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents, and Head, J., disqualified.