Ex parte Brown

• Decision Date: 15 May 1894
• Citation: 15 So. 602,102 Ala. 179
• Parties: EX PARTE BROWN.
• Court: Alabama Supreme Court

15 So. 602

102 Ala. 179

EX PARTE BROWN.

Supreme Court of Alabama

May 15, 1894

Petition by Jim Brown for writ of habeas corpus. Writ granted.

W. S Reese, Jr., for petitioner.

Wm. L Martin, Atty. Gen., for respondent.

HEAD J.

The petitioner was regularly tried in the city court of Montgomery for the offense of manslaughter, and thereupon a verdict was returned and recorded in the following words "We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at one year in the penitentiary." And thereupon the court pronounced sentence, adjudging that the petitioner be imprisoned in the penitentiary for the term of one year. Being detained by the Tennessee Coal, Iron & Railroad Company, under contract with the state made in pursuance of the statute, he applies for the writ of habeas corpus, and prays to be discharged, upon the alleged ground that the said sentence is void. By statute, it is provided "that any person who is convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary for not less than one year, nor more than ten years." Code 1886, § 3733. But this provision is qualified by a later legislative enactment, now found in section 4492 of the Code of 1886, by which it is provided that, in all cases in which the imprisonment or sentence to hard labor is 12 months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county. Under the construction these statutes have received in this court, the jury was not authorized to prescribe the punishment of the petitioner to be imprisonment in the penitentiary for one year. Desiring to fix one year as the period of punishment, there was no alternative but to prescribe imprisonment in the county jail, or at hard labor for the county. Steele v. State, 61 Ala. 213; Herrington v. State, 87 Ala. 1, 5 So. 831; Zaner v. State, 90 Ala. 651, 8 So. 698; Ex parte Simmons, 62 Ala. 417; Ex parte Goucher (at present term) 15 So. 601. We held in Zaner v. State, supra, which was a direct proceeding by appeal, that a verdict like the present one would not support a legal sentence, and have no doubt of the correctness of that conclusion. But the authorities are uniform, so far as we have seen, to the proposition that the reception of such a verdict by the trial court, and discharge of the jury thereon, do not operate as an acquittal, and the prisoner, upon the void verdict being set aside or expunged, or judgment thereon arrested or reversed, may be tried anew. 1 Bish. Cr. Law, § 998; State v. Sutton, 4 Gill, 494; Wright v. State, 5 Ind. 527; Gibson v. Com., 2 Va. Cas. 111; Com. v. Smith, Id. 327; Com. v. Gibson, Id. 70; State v. Valentine, 6 Yerg. 533; State v. Spurgin, 1 McCord, 252; Com. v. Hatton, 3 Grat. 623; State v. Redman, 17 Iowa, 329 (per Dillon, J.); State v. Walters, 16 La. Ann. 400; Murphy v. State, 7 Cold 516; Cobia v. State, 16 Ala. 781; Turner v. State, 40 Ala. 21; Waller v. State, Id. 325; Allen v. State, 52 Ala. 391; Gunter v. State, 83 Ala. 96, 3 So. 600; Herrington v. State, 87 Ala. 1, 5 So. 831; Zaner v. State, 90 Ala. 651, 8 So. 698; Ex parte Simmons. 62 Ala. 417.

Howsoever cogent the argument may appear that a discharge of a jury without the prisoner's consent, upon a return by them of a verdict upon which no lawful judgment or sentence can be...