Salter v. State, 85 So. 847

SAMFORD, J.

Thе defendant was indicted and convicted of violating the prohibition law, and from the judgment he appeals.

[1] It having been shown that the defendant had in his possession beer, from which whisky is usually made, besides bottles and jugs that bad recently contained whisky, it was perfectly competent to prove that tbe defendant’s father, who lived about 150 feet from defendant had a still and 20 or 25 gallons of the same kind of beer as was found in defendant’s ‍‌​​​​​​​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​​​​‌​‌‌​‍bouse, and that there was a “big path” leading from the defendant’s to the father’s hоuse, as tending to connect the defendant with the manufacturе of prohibited liquors. That the father, too, was guilty, in no wise tended to excuse the defendant. The rulings of the court on the evidenсe were in line with the foregoing and were without error. '

[2, 3] We find no еrror in the record affecting the judgment of conviction, which is affirmed, but under the statute (Acts 1919, p. 148) the sentence is error. Under Codе 1907, § 7620, in all convictions for felonies, in which the imprisonment or hard labor, is for more than one year and. not more than two yeаrs, the judge in passing the sentence is invested with the discretion to sentence the party to imprisonment in the penitentiary or сonfinement in the county jail, or to hard labor for the county. This sеction of the Code modifies, becomes a part of, and must, be read in connection with every other section of thе Code to which it relates. Ex parte Thomas, 113 Ala. 1, 21 South. 369. Section 2 of an act providing for an indeterminate ‍‌​​​​​​​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​​​​‌​‌‌​‍sentence (Acts 1919, p. 148, § 2) рrovides that—

“In all cases in which the punishment fixed by the statute is imprisonment in the penitentiary, and in which a maximum and a minimum term is prescribеd, the court shall pronounce upon the defendant an indеterminate sentence of imprisonment in the penitentiary fоr a term not less than the minimum and not greater than the maximum fixed by the statute for such offense.”

If, therefore, section 7620 of the Codе must be read ‍‌​​​​​​​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​​​​‌​‌‌​‍into and become a part of those seсtions where > the term of imprisonment is within the discretion of the judge trying thе case, and the judge, exercising his discretion, fixed the term at nоt more than two years, that would he “the punishment fixed by statute,” and if thе judge trying the case, in the exercise of his discretion, fixed the punishment at hard labor for the county, that would be the punishment “fixed by thе statute,” within the meaning of section ‍‌​​​​​​​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​​​​‌​‌‌​‍2 of the Indeterminate Sentеnce Act, supra. Not so, however, with statutes creating felonies and fixing punishments enacted since the adoption of thе Code of 1907. They, being more recent than the Code of 1907, if repugnant thereto, are not governed by section 7620 of the Code. Bibb v. State, 83 Ala. 84-92, 3 South. 711. Section 15 of an act of the Legislature approved January 25, 1919 (Acts 1919, p. 16), makes the manufacture or distillation of whisky a felony, and fixes the punishment at imprisonment in the penitentiаry for a minimum term of one year and a maximum of five years, to be fixed by the judge trying the ease. The act providing for indeterminatе sentences, supra, applies to ,this class of casеs, and the sentence must be in accord with the two acts supra.

The judgment is remanded, therefore, for proper sentence. Affirmed ‍‌​​​​​​​‌‌​‌‌​‌​‌​‌‌​‌​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​​​​‌​‌‌​‍as to judgment of conviction, and remanded for proper sentence. ■

Affirmed and remanded.

Case Details

Case Name: Salter v. State

Court Name: Alabama Court of Appeals

Date Published: Jun 8, 1920

Citations: 85 So. 847; 17 Ala. App. 517; 1920 Ala. App. LEXIS 162; 3 Div. 373.

Docket Number: 3 Div. 373.

Court Abbreviation: Ala. Ct. App.