Opinion
8 Div. 5.
March 4, 1941.
Appeal from Circuit Court, Marshall County; Albert Hooton, Judge.
Clarence Peters was convicted of forgery, and he appeals.
Affirmed; remanded for proper sentence.
The sentence of the court was "to imprisonment in the penitentiary of this State for a term of not less than ten years and not more than twelve years, ten years being the minimum and twelve years being maximum".
E.L. Roberts, of Gadsden, for appellant.
The verdict was a conviction of forgery in the second degree, and the punishment could not be greater than that provided by law. Brown v. State, 47 Ala. 47; Ex parte Brown, 102 Ala. 179, 15 So. 602; Cousins v. State, 50 Ala. 113, 20 Am.Rep. 290; Ex parte Moore, 62 Ala. 471.
Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
The bill of exceptions was not presented within the time provided by law and should be stricken. Code 1923, § 6433; Jones v. State, 237 Ala. 614, 188 So. 384. The error in sentence is not sufficient to reverse, but the cause should be remanded for proper sentence. McGee v. State, 20 Ala. App. 221, 101 So. 321; McIntosh v. State, 234 Ala. 16, 173 So. 619.
This case was tried, and judgment of conviction entered on April 3, 1940. The bill of exceptions was not presented before and until August 15, 1940, nothing intervening which had the effect of lengthening the time within which it might be presented.
This was not in accord with Code 1928, § 6433, and the Attorney General's motion to strike the bill of exceptions from the record may be, and is, hereby, granted.
Appellant was regularly indicted, tried, and convicted for and of the offense denounced by Code 1928, § 4121, forgery in the second degree. The punishment is prescribed by Code 1928, § 4129.
We find nothing wrong with the conviction of appellant; but the punishment imposed is not in accordance with the law.
The judgment of conviction is affirmed. But the cause is remanded to the court below for proper sentence. McGee v. State, 20 Ala. App. 221, 101 So. 321; McIntosh v. State, 234 Ala. 16, 173 So. 619.
Affirmed. Remanded for proper sentence.