177 S.W.2d 928 | Ark. | 1944
Appellant was tried on an information charging him with the crime of assault with intent to kill Jim Allgood, and was convicted of aggravated assault; and brings this appeal, claiming as error the three points hereinafter discussed:
I. The Insufficiency of the Evidence. In testing the legal sufficiency of evidence to support a verdict it must be viewed on appeal in the light most favorable to the appellee. Thomas and Carter v. State,
II. The Uncertainty of the Verdict. The verdict of the jury read: "We, the jury, find the defendant guilty of aggravated assault and fix the penalty at $100, one year in prison."
On that verdict the court entered judgment and sentence of a fine of $100 and one year in prison. Appellant calls attention to the fact that in the verdict there is a comma between the $100 and the one year in prison, and appellant argues that the comma made the punishment disjunctive rather than conjunctive; that is, the verdict means the fine or the imprisonment; and that the verdict was thus uncertain and void and the court could not *701 interpret the verdict as it did, or, at most, the court could only adjudge the fine or the imprisonment.
There are two answers to appellant's argument, either one of which is sufficient. In the first place, the court had instructed the jury that if it found the appellant guilty of aggravated assault the verdict would be for a fine and imprisonment. So the verdict complied with the court's instructions in that regard. Secondly, and most cogently, the statute (2960, Pope's Digest) requires that the punishment for aggravated assault be both fine and imprisonment. Under this statute it was mandatory on the jury to fix a punishment of both fine and imprisonment; and that is what the verdict did.
The case of Blumenstiel v. State,
We conclude therefore that the verdict was certain and carried both the fine and the imprisonment, and that the trial court was correct in so holding.
III. The Irregularity of the Judgment. In determining the place where the imprisonment of one year should be served, the trial court sentenced the appellant to the state penitentiary. This was error. The imprisonment should have been in the county jail. The statute (2960, Pope's Digest) states that aggravated assault is a misdemeanor, and says that the punishment shall be "imprisonment." In Burrell v. State,
And, as so modified, the judgment is in all other respects affirmed.