Summary
In Tanner v. State, 23 Ala. App. 116, 121 So. 693, and Smith v. State, 23 Ala. App. 106, 121 So. 692, the accused in each case was found guilty by respective juries which failed to fix the punishment in their verdicts.
Summary of this case from Houston v. StateOpinion
3 Div. 635.
April 2, 1929.
Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.
Heabern Tanner was convicted of an offense, and he appeals. Reversed and remanded.
See, also, 219 Ala. 7, 121 So. 423; ante, p. 61, 121 So. 424; 219 Ala. 139, 121 So. 427.
Hamilton Caffey, of Brewton, for appellant.
The jury alone is authorized to fix the punishment upon a conviction of the offense charged. Code 1923, § 5411; Hawes v. State, 19 Ala. App. 280, 97 So. 114; McKinney v. State, 17 Ala. App. 474, 86 So. 121; Ex parte Tanner, 219 Ala. 7, 121 So. 423.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
At the fall term, 1927, the grand jury of Escambia county, Alabama, returned an indictment against petitioner, charging him with the offense of carnally knowing, or abusing in the attempt to carnally know, one Mozella Lamberth, a girl over 12 and under 16 years of age. The defendant was, at a subsequent term of court, and on, to wit, the 23d day of October, 1928, duly placed on trial for said offense, and the jury, upon his plea of not guilty, returned a verdict as follows: "We, the jury, find the defendant guilty, as charged in the indictment." No punishment was included in the jury's verdict.
Thereafter, and on the 27th day of October, 1928, petitioner was called before the judge of said court for sentence, and, although he protested that no sentence could be imposed on him under the jury's verdict, the court nevertheless proceeded to adjudge him guilty of the offense charged in the indictment, and to sentence him to hard labor for the state of Alabama for a period of not less than two years and not more than two years and one hour.
The jury alone is authorized to fix the punishment upon a conviction for the offense of carnal knowledge. Section 5411, Code of Alabama 1923; Hawes v. State, 19 Ala. App. 280, 97 So. 114; McKinney v. State, 17 Ala. App. 474, 86 So. 121; Smith v. State (3 Div. 626) ante, p. 72, 121 So. 692; Tanner v. State (3 Div. 627) ante, p. 61, 121 So. 424.
Reversed and remanded.