Perry v. State , 149 Ala. 40 ( 1907 )

McCLELLAN, J. —

The appellants were jointly indict-

ed for violation of section 5620, Code 1896. Upon their joint trial the jury returned, and the court received, the folloAving verdict: “We, .the jury, find the defendants guilty 'as charged in the .indictment, and assess a fine of one hundred dollars”- — the foreman signing it. The judgment followed the verdict. The verdict was invalid since it failed to separately assess a fine against each offender. The reason is apparent, viz., that payment of the Avhole fine may be recovered from one of the defendants, thus permitting the others to escape punishment, and thereby savoring of the punishment of one man for the guilt of another. — Jones v. Commonwealth, 1 Call (Va.) 555; 4 Bacon’s Abr. p. 234; 2 Hawkins, p. 635; Bosley’s Case, 7 J. J. Marsh. (Ky.) 599; Medis & Hill Case, 27 Tex. App. 194, 11 S. W. 112, 11 Am. St. Rep. 192; Ceasar’s Case, 30 Tex. App. 274, 17 S. W. 258.

The offense denounced in section 5620 is one against the possession, and does not involve the ownership, of the land. This court in passing upon a not materially (for this purpose) dissimilar statute, affords authority for the view above announced. — Wallace’s Case, 124 Ala. 87, 26 South. 932; Hill’s Case, 104 Ala. 64, 16 South. 114. The bill of exceptions shows that Earnest was in actual possession of the injured dwelling, and had been for many years. The defendants were properly not allowed to institute an investigation into the rightfulness of his possession. The special charges stating a contrary conclusion were correctly refused.

The indictment is valid, and not subject to the objections taken to it.

The effort to inquire into the character for chastity alone of one of the witnesses was properly disallowed.— Rhea’s Case, 100 Ala. 119, 14 South. 853; Spicer’s Case, 105 Ala. 123, 16 South. 706.

When a fine is assessed against a defendant, the trial court must either imprison him in the county jail or sentence him to hard labor for the county, as directed by sections 5423-5425, unless the fine and costs are paid or judgment is confessed. This does not appear to have been done in the present case.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.