Hill v. State, 133 So. 741

ants to serve at hard labor for the county for ten days to pay the fine. Section 5290, Code 1923. The judgment of conviction carried with it, in addition to the fine, the costs which accrued on the trial of this case, and, the defendants having failed to pay the costs, or confess judgment therefor, the court attempted to sentence them to hard labor, but the judgment as it appears in the record is faulty in this connection, as it failed to show that the court determined the time required to work out the costs at the rate of 75 cents per day. This the law requires. The judgment as entered shows that “the said defendants, John D. Barnes and Will Daw, each, are sentenced to hard labor for Conecuh County for ten (10) days to satisfy the fine, and an additional period of -- days at 75 cents per day to pay the costs.” This will not suffice, as the governing statute, section 5291 of the Code of 1923, expressly provides the court must determine the time required to work out the costs at the rate of 75 cents per day. This is the only error contained in the record, but, as it relates only to the sentence, the judgment of conviction of the appellants will not be disturbed. The cause is remanded for proper sentence only.

Judgment of conviction affirmed; remanded for proper sentence.

Affirmed; remanded for proper sentence.

J. B. Powell, of Jasper, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD, J.

The prosecution originated in the county court, based upon an affidavit made by one Jim Daly, which charged an offense under section 3328 of the Code of 1923. On conviction in the county court, the defendant appealed to the circuit court, where the solicitor filed a complaint charging an offense under section 49 of Acts 1927, approved August 23, 1927. Acts 1927, p. 365. The defendant moved to strike the complaint on the ground of a departure. The same question was raised by demurrer and objections to evidence.

The wording of the two statutes is different, and different penalties are fixed, so as to make it clear that a prosecution under the one would not lie under the other. It is also clear that the prosecution was begun under section 3328, supra, and that it proceeded in the circuit court on appeal under Acts 1927, supra. This was a departure, and the motion to strike should have been granted. Echols v. State, 16 Ala. App. 138, 75 So. 814.

It becomes unnecessary to pass upon other questions presented. The judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

The appellant having filed his brief as required on the original submission, and the state not having filed brief within fifteen days from such submission, the application for rehearing is stricken. Supreme Court Rule 38; Shirey v. State, 18 Ala. App. 109, 90 So. 72.

Application stricken.

Case Details

Case Name: Hill v. State

Court Name: Alabama Court of Appeals

Date Published: Feb 10, 1931

Citations: 133 So. 741; 24 Ala. App. 239; 1931 Ala. App. LEXIS 240; 6 Div. 839.

Docket Number: 6 Div. 839.

Court Abbreviation: Ala. Ct. App.