Opinion
40533.
DECIDED JANUARY 23, 1964.
Disorderly conduct, etc. Columbus City Court. Before Judge Smith.
Roberts Thornton, Jack M. Thornton, for plaintiff in error.
Neal B. Littlejohn, Assistant Solicitor, W. B. Skipworth, Jr., Solicitor, contra.
The defendant was tried before the Recorder of the City of Columbus for the offense of disorderly conduct. He was pronounced guilty and sentenced to "serve 32 days in jail or pay a fine of $32." An appeal was taken to the City Court of Columbus where the defendant entered a plea of not guilty and demanded trial by jury. Ga. L. 1952, pp. 2155, 2156 provides: "In all cases appealed from the recorder's or mayor's court of the City of Columbus to the City Court of Columbus, where no jail sentence is imposed and the fine does not exceed $50.00, the appeal shall be heard and tried by the judge of the city court without the intervention of a jury; but in all other such appeals, the defendant shall be given a trial by jury, unless such jury trial is waived." The trial judge overruled the demand and, after hearing evidence without a jury, found the defendant guilty and sentenced him to serve 52 days or pay a fine of $52. Error is assigned on the overruling of ground 4 of the motion for new trial based upon the court's refusal to allow the defendant a trial by jury. Held:
A sentence to "serve 32 days in jail or pay a fine of $32" is in the alternative; therefore, the imprisonment of "32 days" is part of the punishment. Hathcock v. State, 88 Ga. 91 (5) ( 13 S.E. 959); Davis v. State, 30 Ga. App. 183 ( 117 S.E. 267); Williams v. Sewell, 121 Ga. 665 ( 49 S.E. 732). In Lee v. State, 103 Ga. App. 161 ( 118 S.E.2d 599), relied on by the city, the sentence imposed a fine and provided for imprisonment merely as a means of enforcing its payment.
This being an appeal to the City Court of Columbus from a jail sentence imposed by the Recorder of the City of Columbus, the defendant had the right upon demand to a trial by jury in the City Court of Columbus. Ga. L. 1952, pp. 2155, 2156, supra.
The trial court erred in overruling ground 4 of the defendant's motion for new trial.
Judgment reversed. Nichols, P. J., and Russell, J., concur.