Ex parte Robinson

• Decision Date: 15 May 1913
• Citation: 183 Ala. 30,63 So. 177
• Parties: Ex parte ROBINSON.
• Court: Alabama Supreme Court

63 So. 177

183 Ala. 30

Ex parte ROBINSON.

Supreme Court of Alabama

May 15, 1913

Carson Robinson was convicted of manslaughter in the first degree and, the conviction having been affirmed by the Court of Appeals (60 So. 558), he petitions for certiorari. Writ denied.

Etheridge & Lamar, of Bessemer, for appellant.

Robert C. Brickell, Atty. Gen., and William L. Martin, Asst. Atty Gen., for the State.

SOMERVILLE J.

The petitioner seeks by writ of certiorari to review and reverse the decision of the Court of Appeals in Robinson v. State (App.) 60 So. 558. The petition and the record show that petitioner was convicted in the city court of Bessemer of manslaughter in the first degree by the verdict of a jury which fixed his punishment at one year in the penitentiary and that by the judgment of the court he was sentenced in accordance with the verdict. On appeal it was at first the judgment of the Court of Appeals that the verdict of the jury was not authorized by law, and was incapable of sustaining a judgment of conviction, and, further, that this defect was available to defendant on appeal, and required a reversal of the entire judgment. Robinson v. State (App.) 60 So. 558. These conclusions were based on section 7620 of the Code, and the cases of Zaner v. State, 90 Ala. 651, 8 So. 698, Ex parte Goucher, 103 Ala. 305, 15 So. 601, and Ex parte Thomas, 113 Ala. 1, 21 So. 369. Upon a reconsideration of the case, however, the former judgment of remandment for a new trial was set aside, and there was entered a judgment of remandment merely for resentence by the trial court, either to imprisonment in the county jail or to hard labor for the county, as directed by the statute. Code, § 7620.

This conclusion was reached under the influence of the ruling of this court in Washington v. State, 117 Ala. 30, 23 So. 697, and the language of the opinion in that case. It is the contention of petitioner that the final judgment of the Court of Appeals in effect overrules Zaner v. State and Ex parte Goucher, supra, and that it is not supported by the decision and views expressed in Washington v. State, supra. Section 7620 of the Code makes provision for the sentence of convicts in three distinct categories: (1) "In all cases in which the period of imprisonment in the penitentiary or hard labor for the county is more than two years, the judge must sentence the party to imprisonment in the penitentiary"; (2) "in all cases of conviction of felonies in which such imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion"; (3) "in all cases in which the imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail or to hard labor for the county." It will be observed that the action of the jury is restricted to fixing the duration of the term of the imprisonment or hard labor; that under the first provision the judge has no discretion as to the place of imprisonment or labor; that under the second provision the judge may exercise a discretion as to the place of imprisonment, and as to the imposition of imprisonment or hard labor; and that under the third provision the judge has no discretion as to the place of imprisonment, but only as to the imposition of imprisonment or hard labor. The instant case falls within the third provision of the statute, with respect to which it has been distinctly ruled that a verdict of conviction and imprisonment for one year in the penitentiary does not authorize a sentence to the penitentiary for that term, and that on appeal such a judgment must be reversed and the cause by remanded, not for a proper sentence, but for a new trial. Zaner v. State, 90 Ala. 651, 8 So. 698. In a later case Zaner v. State was cited with approval, with the observation that the reception of such a verdict and the discharge of the jury, though the judgment be void, do not operate as an acquittal; the defendant being subject to trial anew. Ex parte Brown, 102 Ala. 179, 15 So. 602.

Again where upon a like verdict the judgment imposed a sentence to hard labor for the county, it was said that the court should not receive such a verdict until corrected, and that the record showed reversible error available by appeal or writ of error. Ex parte Goucher, 103 Ala. 305, 15 So. 601. These decisions, standing alone, would seem conclusive in favor of the contentions of petitioner in the present case. But there are later cases in...