63 So. 177 | Ala. | 1914
— -The petitioner seeks by writ of certiorari to review and reverse the decision of the Court of Appeals in Robinson v. State, 6 Ala. App. 13, 60 South. 558. The petition and the record show that petitioner was convicted in the city court of Bessemer of manslaughter in the first degree by the verdict of a jury, which fixed his punishment at one year in the penitentiary, and that by the judgment of the court he was sentenced in accordance with the verdict. On appeal it was at first the judgment of the Court of Appeals that the verdict of the jury was not authorized by law, and was incapable of sustaining a judgment of conviction, and, further, that this defect was available to defendant on appeal, and required a reversal of the entire judgment, — Robinson v. State, 6 Ala. App. 13, 60 South. 558. These conclusions were based on section 7620 of the Code, and the cases of Zaner v. State, 90 Ala. 651, 8 South. 698, Ex parte Goucher, 103 Ala. 305, 15 South. 601, and Ex parte Thomas, 113 Ala. 1, 21 South. 369. Upon a reconsideration of the case, however, the former judgment of remandment for a new trial was set aside, and there was entered a judgment of remandment merely for resentence by the trial court, either to imprisonment in the county jail or to hard labor for the county, as directed by the statute. — Code, § 7620.
This conclusion was reached under the influence of the ruling of this court in Washington v. State, 117 Ala.
Again, Avhere upon a like verdict the judgment imposed a sentence to lim'd labor for the county, it was said that the court should not receive such a verdict until corrected, and that the record showed reversible error available by appeal or writ of error. — Ex parte Goucher, 103 Ala. 305, 15 South. 601. These decisions, standing alone, Avould seem conclusive in favor of the contentions of petitioner in the present case. But there are later cases in point. In Evans v. State, 109 Ala. 23, 19 South. 539., the verdict Avas: “We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at 15 months in the penitentiary.” The trial court sentenced the defendant to 15 months’ hard labor for the county, and 10 months additional for the costs. This Avas held to be a correct practice, the court saying that, “the judge had the discretion under this verdict * * * to sentence the defendant to 15 months — the period of imprisonment fixed by the jury — to hard labor for the county.” In the later case of Washington v. State, 117 Ala. 30, 23 South. 697, the verdict Avas: “We, the jury, find the defendant guilty of manslaughter in the first degree, and Ave further assess his punishment at two years hard labor for the countyThe judgment followed the verdict, and this court said: “The italicized words were mere surplus-age. The court, before receiving the verdict, might
These cases, Evans v. State and Washington v. State, very clearly assert two propositions: (1) When the verdict properly fixes the term of punishment and improperly specifies also its place or character, the latter specification is but surplusage, and may be disregarded by the court; (2) the verdict may be received by the court, and a proper sentence then and there adjudged for the term fixed by the verdict. Petitioner’s insistence, however, is that these cases are to be distinguished from Zaner v. State, Ex parte Brown, and Ex parte Goucher, in that the former fall within the second clause of the statute, while the latter fall within its third clause; that under the second clause the trial court has a discretion as to the place and character of the punishment, and that it is this discretion to follow the verdict or to digress from it that frees the judgment and sentence in those cases from the vice imputed to a judgment and sentence upon a verdict which the court may not lawfully foilow. On the surface, this distinction between
It is true the Washington Case declares that the sentence was illegal, and its reversal proper, in the Zaner Case, but it plainly repudiates the principle of the invalidity of the judgment in toto; for, certainly, if the trial judge may disregard the surplusage of the verdict and incorporate in the judgment of conviction a proper sentence notwithstanding, it necessarily follows that, failing to do so, his error begins, not with the judgment of conviction, but with the imposition of an unauthorized sentence. And so, logically, the judgment of conviction should not be reversed, but only the improper sentence, the object of remandment being merely to place the case again before the trial judge for corrected action at the point of his erroneous departure.
It results that, giving effect to the later decisions of this court, the case of Zaner v. State, 90 Ala. 651, 8 South. 698, is after deliberate consideration declared overruled upon this- proposition; and concurrent expressions in Ex parte Brown, 102 Ala. 179, 15 South. 602, and in Ex parte Goucher, 103 Ala. 305, 15 South. 601, are disapproved.
It results also that the decision of the Court of Appeals in the case sub judice is approved.
The writ of certiorari will be denied.