Thomas v. State, 6 Div. 847
Decision Date | 21 November 1978 |
Docket Number | 6 Div. 847 |
Parties | Lyndon THOMAS v. STATE. |
Court | Alabama Court of Criminal Appeals |
Roger A. Brown of McDonald, Brown & Tipler, Birmingham, for appellant.
William J. Baxley, Atty. Gen. and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee.
Lyndon Thomas was indicted for the carnal knowledge of Nita Thomas, a girl under the age of twelve years. The jury found the appellant "guilty of carnal knowledge, as charged in the indictment." The trial court then fixed sentence at thirty years imprisonment in the penitentiary.
We do not treat the evidence in this cause except to observe that the appellant's two daughters and his wife, each, described a Sunday morning in June, 1977, when the appellant attempted to carnally know his daughter, Nisa Thomas, as well as his still younger daughter, Nita Thomas. The wife described finding the husband in bed with the two girls after being called by another child.
We must reverse and remand this cause for a new trial for the reasons hereinafter set forth.
I.
In his proclamation, proclaiming the effective date of the Code of Alabama 1975, Governor George C. Wallace set October 31, 1977, as the effective and operative date of same. See Volume 1, Code of Alabama 1975, at vi (introductory portion).
Section 1-1-9, Code of Alabama 1975, Volume 3, reads as follows:
As hereinabove noted, the offense in question occurred on a Sunday morning in June, 1977. While the Code of Alabama 1975 now allows the trial judge to fix punishment in such cases, the former Code applicable to this offense required the punishment to be fixed by the jury and not the judge.
In Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, we find this statement:
Further, in Smith v. State, 23 Ala.App. 72, 121 So. 692, we find:
Inasmuch...
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...exclusive authority in imposing sentence on the defendant (TR 141-42), appellee respectfully declines to file a Brief. Thomas v. State, Ala.Cr.App., 365 So.2d 1013 (1978), cert. denied, Ala.S.Ct., 365 So.2d 1014 (1979); Tanner v. State, 23 Ala.App. 116, 121 So. 693 (1929); Smith v. State, 2......