Ex parte Wesley
Decision Date | 18 January 1944 |
Docket Number | 4 Div. 840. |
Citation | 16 So.2d 427,31 Ala.App. 323 |
Parties | Ex parte WESLEY. |
Court | Alabama Court of Appeals |
O S. Lewis, of Dothan, for plaintiff in error.
Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen., for the State.
A petition for writ of error was filed in this court on December 27, 1943, upon the strength of which, the preliminary writ was granted, and made returnable to this court on Thursday, January 13, 1944. The petition was predicated upon the ground of error appearing on the record as the law requires, and seeks a revision thereof. Seitz v. State, 19 Ala.App. 498, 98 So. 321.
The facts incident are fairly stated in brief of the Attorney General wherein the following appears:
The insistence is made that the trial judge transcended his authority in adjudging the defendant guilty, and also in fixing his punishment; for that, these duties, under the Statute, were wholly and entirely for the jury to determine and not for the trial judge. This insistence is well taken and must be sustained.
The error of law complained of in this petition is apparent on the transcript of the record and there can be no question as to the regularity of proceeding in this manner for revision of the record.
Title 14, Section 322, Code 1940, provides as follows: "§ 322. Punishment.-Any person who is convicted of manslaughter in the first degee shall, at the discretion of the jury, be imprisoned in the penitentiary for not less than one nor more than ten years, and any person who is convicted of manslaughter in the second degree shall, at the discretion of the jury, be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may also be fined not more than five hundred dollars." (Emphasis supplied.)
The duty of fixing the punishment in all homicide...
To continue reading
Request your trial-
Headrick v. State, 7 Div. 75
...the trial court cannot relieve the jury of such duty and responsibility. Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427; Bates v. State, 170 Ala. 26, 54 So. 432; Bankhead v. State, 124 Ala. 14, 26 So. 979; Washington v. State, Tit. 15, § 277, ......
-
Norris v. State, 6 Div. 213
...prerogative. [Citations omitted.]" Id. at 118, 76 So.2d at 858. The reviewing court then reversed on the authority of Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427 (1944), wherein the lower court, without the intervention of a jury, accepted the accused's guilty plea to first degree mansla......
-
Chandler v. State, 1 Div. 136
...authority of the court to impose a sentence in manslaughter cases, since that power is expressly conferred on the jury. Ex parte Wesley, 31 Ala.App. 323, 16 So.2d 427; Bankhead v. State, 124 Ala. 14, 26 So. 979; Bates v. State, 170 Ala. 26, 54 So. 432; Powell v. State, 30 Ala.App. 606, 10 S......
-
Ex parte Jenkins, 4 Div. 281
...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 Title 14, Sec. 415, Code 1940, sets out the punish......