Harden v. State
| Decision Date | 19 December 1933 |
| Docket Number | 4 Div. 994. |
| Citation | 155 So. 719,26 Ala.App. 94 |
| Parties | HARDEN v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied March 20, 1934.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
George Washington Harden was convicted of rape, and he appeals.
Reversed and cause remanded.
Brassell & Rowe, of Troy, for appellant.
Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.
This appellant was indicted for rape. The alleged injured party was Florria Harden, who the evidence disclosed was his own daughter, a girl about the age of 16 years, and upon her evidence the state relied for a conviction.
Upon conviction for rape the law makes it the express and sole duty of the jury, in its discretion, to fix the punishment Code 1923, § 5407; and in charging the jury in this case the learned trial judge correctly stated the law in this connection.
The jury, however, disregarded the court's instructions and returned into court the following verdict, to wit: "We the jury, find the defendant guilty as charged in the indictment." The court received this verdict of the jury on November 17, 1932, and the jury, which had been selected from a special venire, as the law requires, were dispersed. On November 18, 1932, the court passed sentence upon appellant and fixed his punishment at imprisonment in the penitentiary for a term of ten years.
The language of the statute, supra, very clearly expresses the legislative purpose that the punishment in cases of this character shall be fixed by the jury, and it has never been supposed that the jury might in such cases leave the punishment to the court. The court, therefore, has no discretion in affixing the punishment and it transcended its authority in so doing. Error to a reversal must be held in this connection. Hawes v. State, 19 Ala. App. 280, 97 So. 114; Bates v. State, 170 Ala. 26, 54 So. 432; Washington v. State, 125 Ala. 40, 28 So. 78.
It might and should be stated, however, that the defect in the verdict and the erroneous sentence of the court thereon do not entitle the defendant to his discharge as for having been once put in jeopardy, but constitutes simply reversible error. Washington v. State, supra; Cobia v. State, 16 Ala. 781; Brown v. State, 109 Ala. 76, 20 So. 103.
We are urged by the state to invoke Supreme Court Rule 45, upon the theory that as the court fixed the minimum punishment the defendant was in nowise prejudiced. This we cannot do, upon authority of Brown v. State, supra. As stated, the statute peremptorily requires the jury to ascertain and fix the punishment by its verdict, and in cases of this character, if this is not done, the court has no power to render judgment at all.
Other questions are presented, but the points of decision thus involved have been, in numerous decisions, heretofore decided by the appellate courts of this state, and it would serve no good purpose to discuss them further.
For the error indicated the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.
Reversed and remanded.
On Rehearing.
The opinion heretofore rendered in this case was upon the record submitted, and the point of decision discussed being conclusive, no other question was considered. We are now informed, by the Attorney General, on his application for rehearing and motion, that the record was incorrect as to the verdict of the jury; that the verdict as a matter of fact was regular in all things and the punishment was fixed by the jury, and not by the court, as the law requires; and we are now requested to set aside the order reversing and remanding this case, and also to issue a certiorari to the clerk of the court below commanding that he send to this court a true and correct transcript thus curing the error upon which the reversal was based.
Pending final disposition of a cause, the appellate courts may issue such orders or writs as are necessary to perfect the record so as to make it speak the truth, as it is the duty of the appellate courts to correct real errors committed by inferior courts in the trial of cases before them upon correct transcripts of the record and proceedings had upon the trial and it is the duty of appellant to see that the transcript is correct. If, after submission, it is made known to the appellate courts that the transcript as submitted is not correct in a material particular in a proper case, the submission may be set aside, and proper orders made to bring up the correct record. However, courts will not do a useless thing; hence the motion, supra, of the Attorney General will be denied for the reason it appears from other adverse rulings of the trial court the cause must be reversed and remanded as will be discussed hereinafter. If said other erroneous rulings did not appear, this court would promptly grant the...
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Waller v. State
... ... We ... think a failure is reversible error when the situation is ... properly brought to the attention of the trial court on the ... day of trial by a proper motion and an exception.' ... A like ... holding is announced in Harden v. State, 26 Ala.App ... 94, 155 So. 719; Crump v. State, 28 Ala.App. 103, ... 179 So. 392; Dodd v. State, 30 Ala.App. 96, 1 So.2d ... 670, certiorari denied 241 Ala. 152, 1 So.2d 671 ... The ... Assistant Attorney General does not question the fact that ... the instant inquiry ... ...
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Thomas v. State
...trial based on the evidence.' In support of which appellant cites Rowe v. State, 20 Ala.App. 119, 101 So. 91, and Harden v. State, 26 Ala.App. 94, 155 So. 719. The foregoing cases cited enunciate correct propositions of law for which they are cited, but a reading of the cases indicate clear......
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Liner v. State
...was in evidence that the prosecutrix's mother and father lived in separate towns distinguishes this case from Harden v. State, 26 Ala.App. 94, 155 So. 719 (1934) cited by the appellant in support of his argument. In argument to the jury, counsel may not argue as a fact that which is not in ......
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Bell v. State, 5 Div. 784
...whether the basis upon which the hypothetical rests has been established. An accurate statement of the law is found in Harden v. State, 26 Ala.App. 94, 155 So. 719 (1933), where the general rule was stated that an expert may give an opinion upon relevant matters under inquiry and he may bas......