McIntosh v. State

• Decision Date: 18 March 1937
• Docket Number: 4 Div. 938
• Citation: 234 Ala. 16,173 So. 619
• Parties: McINTOSH v. STATE.
• Court: Alabama Supreme Court

173 So. 619

234 Ala. 16

McINTOSH v. STATE.

4 Div. 938

Supreme Court of Alabama

March 18, 1937

Certiorari to Court of Appeals.

Roy McIntosh was convicted of driving an automobile on public highway while under influence of intoxicating liquors or narcotic drugs. To review and to revise a judgment of the Court of Appeals (173 So. 617) affirming the conviction in part but remanding the cause for proper sentence, the State of Alabama brings certiorari.

Writ of certiorari granted and cause remanded to Court of Appeals for modification of judgment.

A.A Carmichael, Atty. Gen., and Silas C. Garrett, III, Asst Atty. Gen., for the motion.

Harry Adams, of Enterprise, opposed.

BOULDIN Justice.

Roy McIntosh was convicted for driving an automobile while under the influence of intoxicating liquors in violation of the "Rules of the Road." Gen.Acts 1927, pp. 363, 365, § 48.

The jury returned a verdict of guilty and assessed a fine of $100. Thereupon, a proper judgment of guilty, and for the recovery of the fine so assessed, was entered.

Fine and costs not being presently paid, nor judgment confessed the following additional judgment was entered:

"It is therefore considered, ordered and adjudged by the Court and is the judgment and sentence of the Court, that the defendant Roy McIntosh be, and he hereby is sentenced to hard labor for the County of Coffee for a period of 30 days to pay the fine and _______ days to pay the costs at 75 cents per day, and is further sentenced to three months additional hard labor as punishment by the Court."

The Court of Appeals affirmed the judgment of conviction, the sentence to hard labor for the fine, but remanded the cause for correction of the sentence to hard labor for the costs by inserting the amount of such costs and the number of days at hard labor for the payment thereof.

All this is unchallenged.

But the State by certiorari challenges the further ruling of the Court of Appeals found in the following excerpt from the opinion of that court:

"The judgment of the court, in accordance with the foregoing order, must be limited to the proper period of time at hard labor to pay the fine and costs. That portion of the judgment, supra, to wit, 'and is further sentenced to three months additional hard labor as punishment by the court,' was unauthorized and abortive. Under the statute involved, and for the violation of which this appellant was convicted, there is no provision authorizing the court to impose hard labor upon the defendant when it affirmatively appears to be his first offense of violating said statute. The only punishment prescribed for the first offense is imprisonment in the county or municipal jail for not less than 30 days nor more than 1 year, or by fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment."

A writ of certiorari is prayed "directing the Court of Appeals to revise, reverse and hold for naught that portion of its judgment referred to above, so that the judgment of the trial court, after remandment for proper sentence, will not be limited to the proper period of time at hard labor to pay the fine and costs, but may also include therein an additional term at imprisonment in the county or municipal jail within the limits of section 48 of an act approved August 23, 1927, General Acts 1927, page 363, to which he should be sentenced in the discretion of the court."

Without question, the trial court was without authority to impose an additional sentence at hard labor as additional punishment for the first offense under the statute; but did have authority, in his discretion, to impose as additional punishment imprisonment in the county or municipal jail for the term of three months.

Obviously, the judgment in this regard was more than a mere sentence. It imports a purpose to impose additional punishment, but was in error as to form of punishment. Hence, there was no error in reversing the trial court in that regard.

The question is should it be reversed as void in toto, or reversed only in so far as it imposed hard labor, and stand subject to correction by the trial court by inserting imprisonment in jail for the term specified?

In Ex parte Robinson, 183 Ala. 30, 63 So. 177, the accused had been convicted of manslaughter in the first...