Opinion
6 Div. 63.
November 17, 1964. Rehearing Denied January 12, 1965.
Hollis Richardson, pro se.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
This is an application for writ of error.
Petitioner, a prisoner at Kilby, alleges that he entered a plea of guilty to a charge of assault with intent to rape, and that the trial judge adjudged him guilty and sentenced him to twenty years in the penitentiary.
It is insisted that the fixing of the punishment was a matter for a jury and that the trial judge was without authority to impose the sentence.
Title 15, Section 328, Code 1940, provides:
"When an offense is punishable by imprisonment in the penitentiary, or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury."
Title 14, Section 38, Code, supra, reads:
"Any person who commits an assault on another, with intent to murder, maim, rob, ravish, * * * shall, on conviction, be punished by imprisonment in the penitentiary for not less than two nor more than twenty years."
Since the power to impose the terms of punishment for the offense of assault with intent to rape is not expressly conferred on the jury, it was the duty of the trial judge under the statute to fix the punishment.
Application denied.