Baker v. State , 17 Ala. App. 668 ( 1921 )

This appeal is upon the record proper without bill of exceptions. The oral charge of the court, and the given and refused charges are set out, but, in the absence of a bill of exceptions, cannot be reviewed. The record, as far as the judgment of conviction is concerned, is without error, and it follows that the judgment of conviction must be affirmed.

The court erred, however, in passing sentence upon the defendant, by not complying with the statute (Acts 1919, p. 148), which provides that, in the trial of any felony for which the court is authorized to fix the punishment, and in all cases in which the punishment fixed by statute is imprisonment in the pententiary, and in which a maximum and minimum term is prescribed (which applies to this case), the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the penitentiary for a term not less than the minimum and not greater than the maximum fixed by the statute for such offense, and must state in such sentence the minimum and maximum of the sentence so fixed, or, in other words, the limits thereof. Rogers v. State, ante, p. 175, 83 So. 359.

In the instant case the court sentenced this defendant to "perform hard labor for the state for three years in the state penitentiary." It follows, as before stated, that the judgment of conviction appealed from is affirmed, except as to the part of the judgment imposing sentence. As to such part, the judgment is reversed, and the cause remanded, that the defendant may be sentenced in conformity to the requirements of law.

Affirmed in part, reversed in part, and remanded.