Opinion
2 Div. 639.
May 10, 1938.
Appeal from Circuit Court, Choctaw County; Joe M. Pelham, Jr., Judge.
Petition of Reuben Grayson for habeas corpus. From an order or judgment denying the writ, petitioner appeals.
Affirmed.
D. M. Boswell, of Butler, for appellant.
The judgment rendered on the verdict having been allowed to stand for more than thirty days, there was no power then in the court to alter or amend the judgment. If the judgment was void, defendant was entitled to his freedom. Code 1923, § 6670; Grogan v. State, 44 Ala. 9. The verdict of the jury found defendant guilty under the first count of the indictment, thus acquitting him under the second count. The judgment and sentence finding defendant guilty under the second count is void. Clayborne v. State, 103 Ala. 53, 15 So. 842. Where indeterminate sentence is pronounced, the difference between the minimum and maximum terms of imprisonment must be at least six months. Gen. Acts 1932, p. 163.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
There was simply a clerical error in the judgment, in no way affecting the substantial rights of defendant. The judgment could be corrected nunc pro tunc at any time within three years. Ala. Code 1928, §§ 7854, 7855; Story Merc. Co. v. McClellan, 145 Ala. 629, 40 So. 123; Lewis v. State, 10 Ala. App. 31, 64 So. 537.
The defendant was indicted by the grand jury on two counts.
The first count charges the defendant with unlawfully possessing a still, etc., in violation of section 4656 of the Code of 1923.
The second count charges the unlawful manufacture of prohibited liquors in violation of section 4621 of the Code of 1923.
The indictment charged two separate and distinct offenses, and while it was proper to join them in separate counts, in the same indictment, they were each subject to a separate verdict. Sexton v. State, 23 Ala. App. 318, 127 So. 497.
On the trial of the case the jury, instead of returning a general verdict applicable to either count, returned a verdict finding the defendant guilty under the first count of the indictment, which charged the unlawful possession of a still, etc.
The bench notes of the judge recite: "Jury and verdict guilty under the first count of the indictment." The clerk in writing up the judgment followed the verdict of the jury and following a recital of the verdict proceeded to adjudge the defendant guilty of distilling. This part of the judgment did not respond to the verdict, and as written was void. Discovering the mistake, the solicitor after thirty days, but within three years, made his motion to correct the judgment nunc pro tunc. This being a clerical error of the clerk was amendable under section 7855 of the Code of 1923.
The judgment having been properly amended, the court properly overruled the motion to set aside the order denying the writ of habeas corpus.
The appellant cannot in this proceeding take advantage of the erroneous indeterminate sentence. On appeal sentence would have been corrected to comply with the requirements of Acts of 1932, Ex.Sess. p. 163, but is not the subject of collateral attack.
The judgment is affirmed.
Affirmed.