Zaner v. State

OLOPTON, J. The court adjudged that appellant be imprisoned in the penitentiary for one year, in accordance with the verdict of the jury, which is in the following language : “ We, the jury, find the defendant guilty of manslaughter in the first degree, and assign him to the penitentiary for twelve months.” The discretion to fix the place of imprisonment was exercised by the jury under section 3733 of the Code, which declares: “ Any person who is convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary for not less than one, nor more than ten years.” Section 4492, so far as applicable to the judgment rendered in this case, provides : “ In all cases in which imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county.” In Gunter v. State, 83 Ala. 96, it was held, that the act of March 7,1876, prescribing the legal punishments in this State, which is comprised in section 4450 of Code of 1876, being of later date, amended section 4303 of the same Code, so as to modify the discretion thereby reposed in the jury, and to limit it, when the verdict is manslaughter in the first degree, to fixing the period of punishment, leaving to the court to adjudge its place and character. In construing inconsistent or repugnant sections of a Code, the same rule applies as to a repeal by implication, which controls the construction of original statutes of different dates. The sections'transcribed from later statutes amend or modify the sections transcribed from earlier statutes, so as to produce an agreement between them. Sections 4303 and 4450 of the Code of 1876 having been brought forward and incorporated in the present Code as section 3733 and 4492, the latter section must be construed, under the rule stated, to amend section 3733, so as to modify the discretion of the jury in the respects stated in Gunter v. State, supra.—Steele v. State, 61 Ala. 213 ; State v. Herndon, 74 Mo. 410; Endlich on Stat. § 183. The sentence of defendant to the penitentiary for one year is without authority of law. Notwithstanding this, it is insisted, that as the verdict of the jury finds defendant guilty of manslaughter in the first degree, and fixes the term of sentence at twelve months, that portion prescribing the place of imprisonment in no way interferes, with the power of- the court to adjudge the legal sentence as to the place and nature of the punishment, and should be re [654] garcled as surplusage, or void, and that the judgment should be reversed back to the conviction only, and the cause remanded, not for a new trial, but that the court may render a proper sentence. This case is distinguishable from those cases in which that course was pursued, in this : in those cases, there was .either no verdict of a jury, or the verdict presented no obstacle to the court adjudging the place and character of punishment prescribed by the law. For instance, in Herrington v. State, 87 Ala. 1, no jury was called; the defendant pleaded guilty to the charge of embezzlement, and thereupon the court sentenced him to imprisonment in the penitentiary for the term of one year, which was unauthorized by the statute. Also, in DeBardeleben v. State, 50 Ala. 179, the offense charged being grand larceny, the jury returned a general verdict of guilty, which was followed by a judgment of conviction, and sentence to two years imprisonment in the county jail. It was held, that the statute did not authorize in such case punishment by imprisonment in the county jail. In each of the cases, the sentence only was reversed, leaving the judgment of conviction to stand, and the cause remanded, that the court might pronounce a proper sentence. The proceedings were regular and proper, up to, and including the judgment of conviction; the error consisted only in adjudging the place and nature of the punishment. It may be that, where the jury has no discretion as to the place, nature, or term of the punishment, and the authority to adjudge it resides in the court, if the verdict finds the defendant guilty, and also designates the place, character and term of the punishment, the same would be regarded as surplusage, or void, and as presenting no obstacle to the court adjudging the proper sentence. An informal verdict is ordinarily sufficient to sustain a judgment of conviction and sentence. But, where the jury has a discretion as to the term of the sentence, and they fix it in connection with, and based upon a prescribed place and character of punishment, that portion of the verdict fixing the place can not be regarded as surplusage, or the verdict as merely informal. Hon constat, the place and nature of the punishment may have induced the jury to agree upon the period fixed in the verdict. A verdict which exceeds the limits of the law, or is unauthorized, or so irregular and illegal that it can not be made the predicate of a legal sentence, is incapable of sustaining a judgment of conviction, and a sentence following the verdict.—Gunter v. State, supra. It has been repeatedly held, that a verdict of guilty under an indictment for murder, not expressly finding the degree of the offense, though fixing the punishment at imprisonment in the [655] penitentiary for life, is fatally defective, and does not warrant tlie sentence declared in the verdict.—Dover v. State, 75 Ala. 60. When the sentence of the court follows an irregular and unauthorized verdict, the error reaches beyond the sentence, to the verdict itself, and a reversal of the sentence back to the conviction does not cure the error. In such case, the judgment should be reversed, and the cause remanded for a new trial. The charge given by the court asserts a correct proposition of law. In view of the evidence tending to show that defendant was cautioned not to go by the shop of deceased, and of his dying declarations, which were admitted without objection, we can not say that the charge authorizes the jury to infer facts of which there is no evidence. And, in view of the same evidence,-the charge requested by the defendant, and refused, is defective in that it ignores the question, whether defendant provoked, or was at fault in bringing on the difficulty. For the error mentioned, the judgment must be reversed, and the cause remanded for a new trial. Reversed and remanded.