Robinson v. State

• Decision Date: 19 December 1912
• Citation: 6 Ala.App. 13,60 So. 558
• Parties: ROBINSON v. STATE.
• Court: Alabama Court of Appeals

60 So. 558

6 Ala.App. 13

ROBINSON v. STATE.

Court of Appeals of Alabama

December 19, 1912

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Carson Robinson was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

Etheridge & Lamar, of Bessemer, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

WALKER P.J.

The provision of section 7620 of the Code that, "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," having originally been enacted at a later date has the effect of amending section 7092 of the Code, and of modifying the provision of the last-mentioned section that "any person who is convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary for not less than onenor more than ten years;" a result of the modification being to deprive the jury of the right, on a conviction of manslaughter in the first degree, to fix the defendant's punishment at imprisonment in the penitentiary for a term of one year. The provision of the first-mentioned section requires that when the punishment imposed is hard labor for twelve months or less the defendant must be sentenced, not to imprisonment in the penitentiary, "which," as expressed in the statute, "includes hard labor for the state," but to imprisonment in the county jail, or to hard labor for the county. It follows that such a verdict of the jury as the one rendered in this case, which found the defendant guilty of manslaughter in the first degree and fixed his punishment at one year in the penitentiary, is unauthorized by law, and is incapable of sustaining a judgment of conviction, and a sentence following the verdict. Zaner v. State, 90 Ala. 651, 8 So. 698; Ex parte Goucher, 103 Ala. 305, 15 So. 601; Ex parte Thomas, 113 Ala. 1, 21 So. 369. This lack of the necessary legal support for the judgment of conviction is available to the defendant on appeal, and requires a reversal of the judgment. Zaner v. State, supra.

Reversed and remanded.

Addenda to Opinion.

PER CURIAM.

We are of opinion that due regard to the ruling made in the case of Washington v. State, 117 Ala. 30, 23 So 697, calls for a modification of the judgment of reversal heretofore entered in this case;

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