Opinion
6 Div. 285.
May 8, 1928.
Appeal from Circuit Court, Fayette County; R. L. Blanton, Judge.
H. A. Gartman was convicted of distilling and he appeals. Judgment affirmed, and cause remanded for proper sentence.
J. J. Curtis and J. M. Pennington, both of Jasper, and Leo H. Pou, of Mobile, for appellant.
A sentence to the penitentiary for one year is erroneous. Code 1923, § 5265; Rogers v. State, 17 Ala. App. 175, 83 So. 359; Ex parte Rogers, 17 Ala. App. 172, 82 So. 785. If the sentence be for one year or less, it must be in jail or at hard labor. Hanners v. State, 18 Ala. App. 439, 92 So. 913. It cannot be said that H. A. Gartman and Harvey Gartman are one and the same man. The judgment is erroneous. Parks v. State, 21 Ala. App. 177, 106 So. 218; Amer. Ry. Exp. Co. v. Powell, 206 Ala. 266, 89 So. 546; Poore v. State, 17 Ala. App. 143, 82 So. 627.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The appeal is on the record. The indictment names the defendant as "Harvey Gartman"; the capias names him as "Harvey Gartman"; the appearance bond names him, in the body of the bond, "Harvey Gartman"; but he signs the bond "H. A. Gartman," and upon this bond he was released from custody; the verdict finds the defendant guilty, without naming him; the judgment runs against "the defendant, H. A. Gartman." It was not necessary to have set out the name of the defendant in the judgment. With the record before us, and in the absence of any evidence to the contrary, we think the error is self-correcting, and that "Harvey" and "H. A." are one and the same.
The sentence of the court is for a period of not less than one year nor more than two years. This sentence is not warranted by the statute, and the cause must be remanded for proper sentence. Rogers v. State, 17 Ala. App. 175, 83 So. 359.
Affirmed as to judgment, and remanded for proper sentence.