Simmons v. State
| Decision Date | 21 June 1927 |
| Docket Number | 2 Div. 379 |
| Citation | 113 So. 466,22 Ala.App. 126 |
| Parties | SIMMONS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Sumter County; John McKinley, Judge.
Nathan Simmons was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.
Thos. F. Seale, of Livingston, for appellant.
Charlie C. McCall, Atty. Gen., and W.M. Rayburn, Asst. Atty. Gen for the State.
Under the existing statute, the sentence imposed upon this appellant, defendant below, was without authority of law and erroneous. The charge by indictment was murder in the first degree, but the trial of defendant resulted in his conviction of manslaughter in the first degree, and the jury, by its verdict, fixed his punishment at "imprisonment in the penitentiary of the state of Alabama for the term of one year"; whereupon the court, in accordance with this verdict, "ordered and adjudged that the defendant Nathan Simmons, be confined in the penitentiary of the state of Alabama, for a term of one year," etc.
The controlling statute (section 5265, of the Code of 1923) expressly provides, in all cases in which the period of imprisonment is more than two years, the judge must sentence the party to imprisonment in the penitentiary; and in all cases of conviction for felonies, in which the term of imprisonment is for more than twelve months, and not more than two years, the judge at his discretion may sentence him to either imprisonment in the penitentiary or confinement in the county jail or to hard labor for the county; but in all cases where, as here, the term of imprisonment is twelve months or less, the party must be sentenced, either to imprisonment in the county jail, or to hard labor for the county. In other words, there is no authority of law for a judge to sentence a prisoner to the penitentiary where the term of his punishment has been fixed at one year or less. In the instant case the judge should have regarded as surplusage that portion of the verdict wherein the jury attempted to fix the place of confinement, and the prisoner should have been sentenced in accordance with the terms of the statute, supra; that is, either to imprisonment in the county jail, or to hard labor for the county. This error, however, relates to the sentence only and does not in any manner affect the judgment of conviction. The decisions holding to the contrary have been modified or overruled. Robinson v. State, 6 Ala.App. 13, 60 So. 558; Ex parte Robinson, 183 Ala. 30, 63 So. 177.
Pretermitting however, the question of the sentence imposed, we are of the opinion that, from the undisputed evidence in this case, which we have carefully studied and...
To continue reading
Request your trial
-
Ex Parte State (in Re State v. Neel)
...also presented undisputed evidence of self-defense. See e.g., Bishop v. State, 23 Ala.App. 109, 121 So. 455 (1929); Simmons v. State, 22 Ala.App. 126, 113 So. 466 (1927).6 These two cases have been cited as authority for the following general principle: ‘If the undisputed evidence shows cle......
-
Vander Wielen v. State
...the taking of the life of his assailant.' (emphasis supplied.) See also Valentine v. State, 19 Ala.App. 510, 98 So. 483; Simmons v. State, 22 Ala.App. 126, 113 So. 466. Requested Charges 31 and 35 were properly refused. They ignored Tommy Davidson's duty to retreat and were otherwise Appell......
-
Lockett v. State, 8 Div. 357
...also presented undisputed evidence of self-defense. See e.g., Bishop v. State, 23 Ala.App. 109, 121 So. 455 (1929); Simmons v. State, 22 Ala.App. 126, 113 So. 466 (1927). These two cases have been cited as authority for the following general principle: "If the undisputed evidence shows clea......
-
Ex parte State, No. CR-08-1048 (Ala. Crim. App. 3/26/2010), CR-08-1048.
...also presented undisputed evidence of self-defense. See e.g., Bishop v. State, 23 Ala. App. 109, 121 So. 455 (1929); Simmons v. State, 22 Ala. App. 126, 113 So. 466 (1927).6 These two cases have been cited as authority for the following general principle: `If the undisputed evidence shows c......