Ex parte Jenkins, 4 Div. 281
| Decision Date | 04 January 1955 |
| Docket Number | 4 Div. 281 |
| Citation | 76 So.2d 858,38 Ala.App. 117 |
| Parties | Ex parte James Earl JENKINS, Jr. |
| Court | Alabama Court of Appeals |
Charles T. Emmett, Jr., Birmingham, for appellant.
Bernard F. Sykes, Asst. Atty. Gen., for the State.
In the court below James Earl Jenkins, Jr., was indicted for the offense of robbery.
The jurisdiction of our court is invoked by a petition for writ of error.
According to the allegations of the petition, when the cause came for trial in the circuit court, the defendant entered a plea of guilty as charged in the indictment. Without the intervention of a jury the trial judge adjudged the accused guilty of robbery and imposed a sentence of fifteen years in the state penitentiary.
We granted the writ because of this error of law and directed the Clerk of the Circuit Court of Russell County, Alabama, to send up a full and complete transcript of the record and proceedings in the case. Title 15, Sections 383 and 384, Code 1940.
See, also, Smith v. State, 253 Ala. 277, 44 So.2d 250; Ex parte Knight, 61 Ala. 482; Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427.
The record discloses that the allegations of the petition are true and correct.
Title 14, Sec. 415, Code 1940, sets out the punishment for robbery and provides that this small be fixed at the discretion of the jury.
Title 30, Sec. 70, Code 1940, makes provisions for the procedure in the event an accused enters a plea of guilty to a capital offense. A jury is selected from the panel of regular petit jurors organized by the court during the week the case is set for trial, and it fixes the degree of guilt and punishment.
The appellate courts of this state have reviewed many cases, in which the trial judge fixed the punishment when he was not authorized by statute to so do. Some have involved capital offenses, others have not. All of these authorities adhere to the rule that the statutory duty of the jury to fix punishment is mandatory and the trial court cannot relieve the jury of this prerogative. See Houston v. State, Ala.App., 68 So.2d 735; Tanner v. State, 23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala.App. 106, 121 So. 692.
In the case of Ex parte Wesley, supra, we reviewed a question which is similar to the one now before us. After amendment of the indictment by agreement, the defendant entered a plea of guilty to manslaughter in the first degree. Without the intervention of a jury, the trial judge...
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Hawkins v. State
...jury the assessment was void because § 415, supra, prescribes that the punishment be 'at the discretion of the jury.' In Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, the former Court of Appeals 'All of these authorities adhere to the rule that the statutory duty of the jury to fix punis......
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Prothro v. State
...even though defendant had expressly waived a jury trial and entered a plea of guilty. The proposition is stated in Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955) as follows: "The appellate courts of this State have reviewed Many cases in which the trial judge fixed the punishment wh......
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Headrick v. State, 7 Div. 75
...Code, 1940, sets out the punishment for murder and provides that this shall be fixed at the discretion of the jury. In Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, it is stated: 'The appellate courts of this state have reviewed many cases in which the trial judge fixed the punishment wh......
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Norris v. State, 6 Div. 213
...under statutory law. The Court, sitting without jury, was without authority to accept guilty plea to offense of Robbery. Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d ; Smith v. State, 11 Ala.App. 153, 155, 65 So. 693 (1914)." 2 We find no appropriate application of Smith v. State. In Ex part......