Washington v. State

• Decision Date: 01 June 1898
• Citation: 23 So. 697,117 Ala. 30
• Parties: WASHINGTON v. STATE.
• Court: Alabama Supreme Court

23 So. 697

117 Ala. 30

WASHINGTON v. STATE.

Supreme Court of Alabama

June 1, 1898

Appeal from city court of Mobile; O. J. Semmes, Judge.

Henry Washington was convicted of manslaughter, and he appeals. Affirmed.

Upon the return of the verdict of the jury, which is copied in the opinion, the defendant moved the court in arrest of judgment upon the ground that the verdict of the jury was contrary to law, and was unauthorized, by reason of the fact that under section 4492 of the Code of 1886 (section 5412, Code 1896) the jury had no discretion and no authority to fix the kind or character of punishment to be inflicted upon the defendant, and that the only discretion invested in the jury in the case was to fix the period of punishment. This motion was overruled, and the defendant duly excepted. This ruling is the only question presented for review on the present appeal.

Winfield S. Lewis, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

BRICKELL C.J.

It ought to be regarded as fully and finally settled by the decisions of this court that upon a conviction of manslaughter in the first degree the power of the jury is exhausted when, with their verdict of guilty, they fix the period or number of years the punishment is to continue (Code 1896, § 5412) and cases cited in the note thereto. In the present case the jury, by their verdict, found the defendant guilty of manslaughter in the first degree, and undertook to fix his punishment at two years' hard labor for the county of Mobile. It is here insisted that the sentence is illegal, not because of a want of authority in the court to impose a sentence to hard labor for the county for the term of two years, but because the verdict of the jury went beyond their authority, and undertook to prescribe the place or character of the punishment. The verdict was: "We, the jury, find the defendant guilty of manslaughter in the first degree, and we further assess his punishment at two years' hard labor for the county. " The italicised words were mere surplusage. The court, before receiving the verdict, might have instructed the jury to omit them. These words omitted, and the verdict is in all respects one which the jury were authorized to render. The futile attempt of the jury to fix the place or character of punishment imposed no restriction upon the discretion vested in the judge by section 5412 of the Code of 1896. The term of the punishment being fixed...