Spicer v. State , 105 Ala. 123 ( 1894 )

COLEMAN, J

The defendant was indicted for. an assault with a stick or switch. On the trial the jury returned a verdict as follows : “"We the jury find the defendant guilty,” and upon this verdict the court “adjudged that the defendant pay a fine of fifty dollars and cost,” and sentenced the defendant to hard labor to pay said fine imposed by the court, and imposed an additional term of hard labor for three months.

The statute is specific, that the jury “shall fix and determine the amount of the fine.” — Cr. Code, § 4499. It is also provided that when an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury “shall not be required to impose a fine, if, in their judgment, the defendant should only be punished in some other mode, but may, in such case, only find him guilty, and leave the imposition of the punishment to the court.” — Code, § 4500. It has been expressly decided, that when a party is tried upon an indictment for an assault and battery, a “verdict of guilty by the jury, without assessing a fine, does not authorize the court to impose a fine upon the defendant.”—Melton’s Case, 45 Ala. 56; Nelson’s Case, 46 Ala. 186. The verdict in the case at bar is sufficient to support the judgment and sentence to hard labor for three months, and for the cost, and if there were no other errors, we would remand the cause, that the court might correct the error of the judgment of the court, and enter a proper judgment and sentence.

During the trial, the defendant introduced as a witness, John Williams, a half-brother of the person alleged to have been assaulted. The testimony of the brother tended to impeach the credibility of the witness, who testified for the State to the assault upon her. In its charge to the jury, the court stated : “The witness, John Williams, the half-brother of Polly Ann Spicer, instead of defending and assisting his half-sister, comes here to blacken her character, and that fact may be looked to by you for the purpose of saying how much weight you will give to his testimony.” In this charge the court stated it to the jury, as a fact in the case, that John Williams had come there for the purpose of blackening the character of his half-sister. We will not.comment on this' charge further than to say, the court palpably transgressed the boundary of its province. Want of chastity can. not be singled out and made a special ground for. impeaching the character of a witness for truth and veracity.—Prior v. The State, 99 Ala. 196; Rhea v. The State, 100 Ala. 119, and authorities.

A charge which instructs a jury that they can not convict on the testimony of a witness against whom impeaching testimony has been offered, invades their province and is properlv rejected.-—Paul v. The State, 100 Ala. 136.

Reversed and remanded.