Opinion
No. 28833.
October 31, 1927.
Appeal from Fourth Judicial District Court Parish of Ouachita; Percy Sandel, Judge.
Homer Blakeney was convicted of cutting with a dangerous weapon with intent to kill, and he appeals. Verdict affirmed, and case remanded for imposition of proper sentence.
Zach T. Heard, of Monroe, for appellant.
Percy Saint, Atty. Gen., David I. Garrett, Dist. Atty., and J.B. Thornhill, Asst. Dist. Atty., both of Monroe (E.R. Schowalter, Asst. Atty. Gen., of counsel), for the State.
The appellant was indicted and tried for the crime of stabbing with a dangerous weapon with intent to murder, and was found guilty of the crime of cutting with a dangerous weapon with intent to kill. He was sentenced to imprisonment at hard labor in the penitentiary for a term not less than 18 months nor more than 2 years.
The record contains two bills of exception; one taken to the refusal of the judge to grant a continuance because of the illness of the defendant's attorney, and the other taken to the overruling of a motion for a new trial, on the same complaint. It appears that the trial was postponed from one day to the next, on account of the attorney's illness, and, when the case was again called for trial, he again moved for a continuance, and in support of the motion produced a laboratory certificate and a doctor's certificate showing that he (the attorney, who was then in court) had chronic malaria and a temperature of 100 degrees, and that the doctor thought it unwise for the attorney to perform his professional duties that day. Notwithstanding that showing, the district judge, who had a better knowledge of the facts than we have, decided that the attorney was physically and mentally able to try the case properly; and we cannot say with any degree of certainty that the judge abused his discretion. We have no doubt that the attorney, who is a very honorable member of the bar, was sincere in his belief that he was not physically able to do his best at the trial; but the judge, in his statement per curiam, says that the attorney tried the case with the same marked ability that characterized his trial of other cases. Considering the wide margin of discretion which the trial judge is invested with in the matter of granting continuances on such grounds, we are constrained to sustain his ruling in this case. The verdict therefore must be affirmed.
The sentence, however, is illegal, because it is not in accord with the mandatory provisions of the Act of 222 of 1926, p. 358. The statute declares that in all sentences to imprisonment in the penitentiary or at hard labor, except in certain specified cases of which this is not one, the judge shall impose an indeterminate sentence, the minimum term of which shall be not less that the minimum fixed by the statute under which the person sentenced was convicted, nor more than two-thirds of the maximum sentence imposed, and that the maximum sentence shall be not longer than the maximum term of imprisonment fixed in the statute. The minimum term of 18 months imposed in this case is more than two-thirds of the maximum term of 24 months. It is not our province to correct the error by reducing the minimum sentence to 16 months, or less. It is the duty of the district judge to impose the sentence according to law, and to determine whether the minimum sentence shall be exactly two-thirds of the maximum, or less than two-thirds of the maximum, and, if less, how much less. The sentence being illegal, the case is in the same condition as if no sentence at all had been imposed, and it must be remanded for the judge to impose a legal sentence. The invalidity of the sentence, of course, does not affect the validity of the verdict.
The verdict is affirmed and the case is ordered remanded to the district court for the judge to impose a sentence according to the Act 222 of 1926.