Freeman v. State
| Decision Date | 15 May 1907 |
| Citation | 44 So. 46,151 Ala. 10 |
| Parties | FREEMAN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Tuscaloosa County Court; H. B. Foster, Judge.
Tee Freeman was convicted of an assault and battery with a weapon, and appeals. Reversed and remanded.
Massey Wilson, Atty. Gen., for the State.
The verdict of the jury is in this language: "We, the jury, find the defendant guilty of an assault and battery with a weapon, and fix the punishment with a fine of two hundred dollars and six months' hard labor for the county." The jury had no power to fix hard labor as a part of the punishment (Code 1896,§§ 4343, 5415), but this fact does not render the verdict void in toto; the rule being that the addition of hard labor as punishment in the verdict must be treated as mere surplusage. Taylor's Case, 114 Ala. 20, 21 So. 947; Martin's Case, 125 Ala. 64, 28 So. 92.
On the verdict as rendered the court might properly sentence the defendant to hard labor to pay the fine and costs, in the absence of payment thereof or else confession of judgment therefor. The power to fix hard labor as additional punishment is given to the court, and it might properly award such additional punishment for a period not exceeding the limits fixed by the statute. The mere fact that the jury attempted to award the additional punishment did not affect the court's power to impose it. Martin's Case, supra. But as the court failed in the sentence to determine the time requisite to work out the costs, as required by the statute (Code 1896, § 4532), the judgment must be reversed as to the sentence, and the cause remanded for the further sentence by the court in accordance with law. Linnehan's Case, 120 Ala. 293, 25 So. 6.
There is no other error in the record.
Reversed and remanded.
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Brazell v. State, 1 Div. 400
...fixes punishment where that duty rests with the judge, that part of its verdict should be treated as surplusage. Freeman v. State, 151 Ala. 10, 44 So. 46 (1907). Because "(t)he verdict of a jury in a criminal case should be based solely upon the evidence adduced on the trial and be absolute......
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Beatty v. State
...and it will be presumed that the judge was acting under his own power and authority in imposing the sentence of two years. Freeman v. State, 151 Ala. 10, 44 So. 46; Martin v. State, 125 Ala. 64, 28 So. 92. Appellant's attorney made a motion to quash the venire on the ground that the sheriff......
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Corbitt v. State, 8 Div. 965
...be presumed that the trial judge was acting under his own power and authority to award the additional hard labor sentence. Freeman v. State, 151 Ala. 10, 44 So. 46; Martin v. State, 125 Ala. 64, 28 So. We find no reversible error in the record. The judgment below is ordered affirmed. Affirm......
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Lawley v. State, 7 Div. 468.
...is concerned, and the judgment of conviction is therefore affirmed, but the cause is remanded for proper sentence. Freeman v. State, 151 Ala. 10, 44 So. 46; Leonard v. State, 96 Ala. 108, 11 So. The judgment of conviction is affirmed, and the cause is remanded for proper sentence. Affirmed ......