Goldsmith v. State

Alabama Court of Appeals

Goldsmith v. State

137 So. 782, 24 Ala. App. 552, 1931 Ala. App. LEXIS 156

CourtAlabama Court of Appeals

DecidedNovember 24, 1931

Docket1 Div. 23.

StatusPublished

This text of 137 So. 782 (Goldsmith v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goldsmith v. State, 137 So. 782, 24 Ala. App. 552, 1931 Ala. App. LEXIS 156 (Ala. Ct. App. 1931).

Pincite

Opinion

BRTCKEN, P. J.

This appellant was indicted, tried, and convicted for the offense of assault with intent to murder upon one Zettio Green, alias Bap. The jury returned a verdict against him as follows: “We the jury find the defendant Eugene Goldsmith, alias Eugene Bush guilty as charged.” Thereupon the court pronounced and entered a judgment of conviction upon the defendant to the effect that he “is guilty of the offense of assault with Intent to murder as charged in the indictment.” To this extent the judgment of conviction from which this appeal was taken is correct. But that part of the judgment wherein the court undertook to sentence the defendant to two years hard labor for the county, is erroneous. The trial court, in this connection, followed section 5265 of the Code 1923. Section 5265 has in effect been superseded by section 5267 et seq. of the Code 1923. These statutes are in conflict as to the place of imprisonment, and the Act of the Legislature 1919, p. 148, as codified, section 5267 et seq., providing for the indeterminate sentence, is the last specific expression of the legislative will on the point at issue, and should be followed by trial courts in the im: position of sentences. This specific holding by the Supreme Court of Alabama appears in the case of Green v. State, 222 Ala. 556, 133 So. 740. As will be there noted, this court in numerous decisions has held to the same'effect. See cases cited. Green v. State (Ala. App.) 133 So. 739. 1 As the law now stands, in the trial of any felony for which the court is authorized to fix punishment, and in which a maximum and minimum term is prescribed, the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the pehitentiary for a term not less than the minimum and not greater than the maximum fixed by the statute for such offense, stating in such sentence the minimum and maximum limits so fixed by the court.

In the instant case, no-briefs liave been filed for appellant or by the state. We have read the entire record, and have given careful consideration to the points of decision presented by the few exceptions reserved pending the trial. In this connection we discover no ruling of the court wherein the substantial rights of the accused have been erroneously affected or impaired. It follows, as to the judgment of conviction pronounced and entered, an affirmance thereof is ordered. The cause must be remanded, however, to the lower court for proper sentence in accordance with what has been said herein, and the statutes prevailing.

Affirmed. Remanded for proper sentence.

1

Ante, p. 235.

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BRTCKEN, P. J.

This appellant was indicted, tried, and convicted for the offense of assault with intent to murder upon one Zettio Green, alias Bap. The jury returned a verdict against him as follows: “We the jury find the defendant Eugene Goldsmith, alias Eugene Bush guilty as charged.” Thereupon the court pronounced and entered a judgment of conviction upon the defendant to the effect that he “is guilty of the offense of assault with Intent to murder as charged in the indictment.” To this extent the judgment of conviction from which this appeal was taken is correct. But that part of the judgment wherein the court undertook to sentence the defendant to two years hard labor for the county, is erroneous. The trial court, in this connection, followed section 5265 of the Code 1923. Section 5265 has in effect been superseded by section 5267 et seq. of the Code 1923. These statutes are in conflict as to the place of imprisonment, and the Act of the Legislature 1919, p. 148, as codified, section 5267 et seq., providing for the indeterminate sentence, is the last specific expression of the legislative will on the point at issue, and should be followed by trial courts in the im: position of sentences. This specific holding by the Supreme Court of Alabama appears in the case of Green v. State, 222 Ala. 556, 133 So. 740. As will be there noted, this court in numerous decisions has held to the same'effect. See cases cited. Green v. State (Ala. App.) 133 So. 739. 1 As the law now stands, in the trial of any felony for which the court is authorized to fix punishment, and in which a maximum and minimum term is prescribed, the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the pehitentiary for a term not less than the minimum and not greater than the maximum fixed by the statute for such offense, stating in such sentence the minimum and maximum limits so fixed by the court.

In the instant case, no-briefs liave been filed for appellant or by the state. We have read the entire record, and have given careful consideration to the points of decision presented by the few exceptions reserved pending the trial. In this connection we discover no ruling of the court wherein the substantial rights of the accused have been erroneously affected or impaired. It follows, as to the judgment of conviction pronounced and entered, an affirmance thereof is ordered. The cause must be remanded, however, to the lower court for proper sentence in accordance with what has been said herein, and the statutes prevailing.

Affirmed. Remanded for proper sentence.

1

Ante, p. 235.

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137 So. 782, 24 Ala. App. 552, 1931 Ala. App. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldsmith-v-state-alactapp-1931.

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