Smith v. State
| Decision Date | 02 April 1929 |
| Docket Number | 3 Div. 634. |
| Citation | 23 Ala.App. 106,121 So. 692 |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.
George W. Smith was convicted of an offense, and he appeals. Reversed and remanded.
See, also, 121 So. 692.
Hamilton & Caffey, of Brewton, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Appellant was regularly indicted and tried for the offense denounced by Code 1923, § 5411. The jury trying the case returned a verdict as follows: "We the jury find the defendant guilty as charged in the indictment." Whereupon, and over appellant's protest, the trial judge proceeded to "fix the punishment" and to sentence the appellant. This was in contravention of the plain terms of the statute (Code 1923, § 5411, supra), which are that one convicted, as appellant, be punished (within certain limits) "at the discretion of the jury." (Italics ours.) And for this unauthorized and erroneous action of the court, the judgment is reversed, and the cause remanded. Code 1923, § 5411; Ex parte Heabern Tanner (Ala. Sup.) 121 So. 423.
No other questions are apparent.
Reversed and remanded.
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Headrick v. State, 7 Div. 75
...23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala.App. 106, 121 So. We quote from Houston v. State, 37 Ala.App. 359, 68 So.2d 735, as follows: 'The ju......
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Thomas v. State, 6 Div. 847
...23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala.App. 106, 121 So. 692." Further, in Smith v. State, 23 Ala.App. 72, 121 So. 692, we find: "We know o......
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Wilkerson v. State
...... regard to the proper forms of verdicts authorized, but. notwithstanding these explicit instructions the jury wrote a. verdict finding the defendant guilty as charged in the. indictment but they did not go far enough to fix in the. proper form the punishment. In Smith v. State, 23. Ala.App. 106, 121 So. 692, a conviction of the appellant for. having carnal knowledge of a girl over 12 and under 16 years. of age was reversed because the court fixed the punishment on. the verdict of the jury which was as follows: 'We the. jury find the defendant guilty, as ......
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Fuller v. State, 4 Div. 872.
...... judgment of sentence. For the unauthorized action of the. primary court, the judgment is reversed and the cause is. remanded. Washington v. State, 125 Ala. 40, 28 So. 78;. McKinney v. State, 17 Ala.App. 474, 86 So. 121; Hawes v. State, 19 Ala.App. 280, 97 So. 114; Smith v. State, 23. Ala.App. 106, 121 So. 692; Tanner v. State, 23 Ala.App. 116,. 121 So. 693. . . Reversed. and remanded. ......