Washington v. State , 117 Ala. 30 ( 1897 )

BRICKELL, C. J.

It ought to be regarded as fully and finally settled by the decisions of this^court that upon a conviction of manslaughter in the first degree the power of thé jury is exhausted when, with their verdict of guilty, they fix the period or number of years the punishment is to continue. — Code of 1896, §5412, and cases cited in the note thereto. In the present case the jury by their verdict found the defendant guilty of manslaughter in the first degree and undertook to fix his punishment at two years hard labor .for the' county of Mobile. It is here insisted that the .sentence is illegal, not because of a want of authority in the court to impose a sentence, to hard labor for the county for the term of two years, but because the verdict of the jury went beyond their authority and undertook to prescribe the place or character of the punishment. The verdict was : “We, the jury, find the defendant guilty of manslaughter in the first degree, and we further assess his punishment at two years hard labor for the county.” The italicised .words were mere surplusage. The court, before receiving the verdict, might have instructed the jury to omit them. These words omitted and the verdict is in all respects one which the jury were authorized to render. The futile attempt of the jury to fix the place or character of punishment imposed no restriction upon the discretion vested, in the judge by section 5412 of the Code of 1896. The term of the punishment being fixed by the jury at two years, the judge was authorized, by that section, to sentence the defendant “to imprisonment in the penitentiary, or confinement in the county, jail, orto hard labor for the county, at his discretion.” That the judge, in the exercise of his discretion, saw fit to select the place or character of punishment suggested by the surplusage of the verdict, can not affect the validity of the sentence. The case is distinguished from the case’ of Zaner v. State, 90 Ala. 651, where the sentence, following the verdict, was to imprisonment in the penitentiary for the term of one year, — a sentence the court was not authorized by law to impose. The sentence being illegal, the case was properly reversed; and while there are expressions in the opinion-in that case and in the case of Ex parte Brown, 102 Ala. 179, to.the effect that the court could not pronounce a legal sentence on such a verdict, they are not in harmony with later decisions. In the case of Evans v. State, 109 Ala. 11, 24, the verdict of the jury was : “We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at fifteen months in the penitentiary.” The judge sentenced the defendant to fifteen months hard labor for the county of Cleburne and an additional term of ten months for the costs of the prosscution. This court held the sentence authorized by law and sustained by the verdict. We adhere to the opinion in Evans v. State, supra.

Affirmed.