Wade v. State, 4 Div. 526.
Decision Date | 28 November 1939 |
Docket Number | 4 Div. 526. |
Citation | 29 Ala.App. 115,192 So. 425 |
Parties | WADE v. STATE. |
Court | Alabama Court of Appeals |
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Earnest alias Ernest, Wade was convicted of manslaughter in the first degree, and he appeals.
Affirmed and remanded for proper sentence.
Thos S. Lawson, Atty. Gen., for the State.
At the Fall term 1938 of the circuit court of Russell County the grand jury found and returned into open court an indictment against this appellant charging him with the offense of murder in the first degree; specifically, that he unlawfully and with malice aforethought killed Gertrude Williams by shooting her with a gun or pistol, etc.
On May 22, 1939, the defendant was arraigned upon said indictment and interposed his plea of not guilty. Whereupon, the court duly and properly made and entered all necessary orders as to setting a day for the trial of the case and drawing a venire to try the case. As to all this no question is raised.
The pertinent portion, here, of the judgment entry as shown by the record is as follows:
Thereafter, follows that portion of the judgment sentencing the prisoner. It reads as follows:
In sentencing the defendant to imprisonment in the penitentiary for the fixed period of one year the court fell into error.
As appears above, the jury acted within its province by finding the defendant guilty of the offense of manslaughter in the first degree under an indictment which charged him with the offense of murder in the first degree. Section 8697, Code 1923. In every prosecution for unlawful homicide the duty devolves upon the jury, in cases of conviction, to decide and determine, in fact it is the sole province of the jury, not only the degree of homicide, but also the punishment to be inflicted. It is not the province of the jury in a case of this character to designate by its verdict the place of confinement, as the Statute (Section 5265, Code 1923) specifically provides the manner and place of punishment. Said Statute is as follows:
"* * * And in all cases in which the period of imprisonment in the penitentiary or hard labor for the county 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 such imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion, any other section of this Code to the contrary notwithstanding; and 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...
To continue reading
Request your trial-
Carter v. State
...19 So.2d 361 31 Ala.App. 526 CARTER v. STATE. 8 Div. 361.Alabama Court of AppealsJune 27, 1944 ... 144, 194 So. 694, certiorari denied 239 ... Ala. 244, 194 So. 697; Wade v. State, 29 Ala.App ... 115, 192 So. 425; Williams v. State, 26 ... ...
-
Hanby v. State, 1 Div. 732
...jail or to hard labor for the county, not to the penitentiary, where punishment is fixed at imprisonment for one year. Wade v. State, 29 Ala.App. 115, 192 So. 425, and the many cases there cited; Brown v. State, 32 Ala.App. 433, 26 So.2d 629; § 325, Title 15, Code 1940, as amended. Where an......
-
Evans v. State, 8 Div. 405.
...for a period of one year. Under the law no such sentence is authorized. Code of Alabama 1940, Title 15, § 325; Wade v. State, 29 Ala.App. 115, 192 So. 425, and numerous cases cited.' It therefore becomes to remand this cause for proper sentence, under authorities cited. There appears upon t......
-
Reaves v. State, 4 Div. 971.
...reverse the judgment of the court below. We must, however, remand the cause to the nisi prius court for proper sentence. Wade v. State, 29 Ala.App. 115, 192 So. 425. It ordered that the judgment of the primary court be affirmed and the cause remanded with instruction to the court below that......