Opinion
8 Div. 513.
June 18, 1946.
Appeal from Circuit Court, Marshall County; W. J. Haralson, Judge.
John Brown was convicted of manslaughter in the first degree, and he appeals.
Affirmed; remanded for proper sentence.
Wm. C. Rayburn, of Guntersville, for appellant.
Wm. N. McQueen, Atty. Gen., for the State.
This appeal is here on the record without the transcription of the testimony. We find the proceedings in all respects regular with the exception of the sentence imposed.
The appellant was adjudged guilty of manslaughter in the first degree and by the verdict of the jury was given one year in the penitentiary. On the basis of this adjudication, the trial court sentenced appellant to "be imprisoned in the penitentiary of the State of Alabama for a term of one year, in keeping with the verdict of the jury * * *."
It is true that the jury's verdict was in keeping with the law. Title 14, Sec. 322, Code 1940. The authorities, however, hold that a jury cannot fix the place of punishment contrary to the provisions of Title 15, Sec. 325, Code 1940, that such an attempt is futile and must be considered as surplusage. Roberson v. State, 18 Ala. App. 634, 94 So. 132; Robinson v. State, 6 Ala. App. 13, 60 So. 558.
It remains, therefore, that the cause must be remanded for appropriate sentence.
Affirmed. Remanded for proper sentence.