Broadhead v. State, 1 Div. 54.

• Decision Date: 12 January 1932
• Docket Number: 1 Div. 54.
• Citation: 24 Ala.App. 576,139 So. 115
• Parties: BROADHEAD v. STATE.
• Court: Alabama Court of Appeals

139 So. 115

24 Ala.App. 576

BROADHEAD v. STATE.

1 Div. 54.

Court of Appeals of Alabama

January 12, 1932

Appeal from Circuit Court, Washington County; T. J. Bedsole, Judge.

Homer Broadhead was convicted of setting fire to a pine forest, and he appeals.

Reversed and rendered.

RICE J., dissenting.

Granade & Granade, of Chatom, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

BRICKEN P.J.

The sentence to hard labor as to the costs of this case appearing in the judgment is ineffective and fails to comply with the mandatory provision which requires the trial court to determine the time, that is to say, the number of days required to work out the costs at the rate of 75 cents per day. Section 5291 of the Code prescribes, "*** if the costs are not presently paid or judgment confessed therefor as provided by law, then the court may impose additional hard labor for the county for such period, not to exceed ten months, as may be sufficient to pay the costs, at the rate of seventy-five cents per day, and [as stated] the court must determine the time required to work out such costs," etc. This simply means the court must sentence the defendant to hard labor for a specifically stated number of days to pay the cost, and must not, as here appears, leave this sentence for cost for some one else to calculate or determine.

The foregoing is not necessarily of import in this particular case, as we have ascertained that prejudicial error prevailed upon the trial which necessitates a reversal of the judgment of conviction from which this appeal was taken. The rule or requirement is here reiterated for the purpose of instruction as to proper sentence to hard labor for costs. It should be strictly followed, thereby averting the frequent necessity to remand a case to the lower court for proper sentence. The statute in question is clear and explicit as to this requirement, but notwithstanding the appellate courts of this state are frequently called upon to remand cases to the lower courts for failure to comply with the statute.

The offense complained of in this prosecution was the violation of section 4111 of the Code 1923, which makes it unlawful for any person to willfully set fire to any pine forest which is used for the purpose of procuring turpentine, etc. This appellant and three others were charged with the offense; the prosecution originated in the county court upon affidavit and warrant. From a judgment of conviction in said court, an appeal was taken to the circuit court where the accused were tried upon a complaint filed by the solicitor; said complaint being predicated upon the original affidavit.

On the trial of the case in the circuit court, the corpus delicti was fully proven without dispute or conflict; the evidence for the state, in this connection, disclosed that some person or persons had set fire to pine forest which was used for the purpose of procuring turpentine. In other words, the crime charged was shown by the evidence to have been committed; the offense consummated by some one. The material question upon the trial was whether the appellant and his associates were the guilty persons. This they strenuously denied, and offered much evidence in support of their insistence. This was the only issue for the jury to decide. The court, however charged the jury: "If they were not satisfied that the defendant was guilty as charged, then in their discretion they could render a verdict finding the defendant guilty of an attempt to commit the offense." An exception was duly reserved to the foregoing. The jury followed this instruction, and returned a verdict as follows: "We the jury...