Harkey v. State

Alabama Court of Appeals

Harkey v. State

68 So. 698, 13 Ala. App. 201, 1915 Ala. App. LEXIS 35

CourtAlabama Court of Appeals

DecidedMay 13, 1915

StatusPublished

Cited by8 cases

This text of 68 So. 698 (Harkey 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

Harkey v. State, 68 So. 698, 13 Ala. App. 201, 1915 Ala. App. LEXIS 35 (Ala. Ct. App. 1915).

Pincite

Opinion

THOMAS, J.

There is no bill of exceptions, and no errors are apparent on the face of the record, except as to' the sentence, which is erroneous.

The charge against defendant was for a violation of the prohibition laws in selling, keeping for sale, or other unlawful disposition, of intoxicating liquors. The jury returned a general verdict of guilty, but fixed no fine, which they might have done under section 3 of the act of August 9, 1909 (Gen. & Local Acts Sp. Sess. 1909, p. 9), but which they refrained from doing, as we must infer, under the power of section 7630 of the Code, which provides that: “When [as is the case here] an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine; but, if in their judgment, the defendant should’only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of. the punishment to the court.”

The court, however, in the imposition of the punishment in such case, cannot assess a fine, as this was the prerogative of the jury, but is limited to the imprisonment of defendant in the county jail or to his confinement at hard labor for the county.—Gen. & Local Acts 1909, p. 9, § 3; Spiver v. State, 105 Ala. 126; 16 South. 706; Melton v. State, 45 Ala. 56; Nelson v. State, 46 Ala. 186; Stanfield v. State, 3 Ala. App. 58, 57 South. 402.

Here, the court not only imposed a hard-labor sentence of two months, but also assessed a fine of $75 against defendant.

[203]*203The judgment appealed from is therefore reversed hack to the adjudication of guilt, to the end that the court may impose a punishment and sentence in compliance with the requirements of the law as indicated.

Affirmed in part, that is, as to the judgment of guilt, and reversed and remanded in part, that is, as to the punishment and sentence.

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THOMAS, J.

There is no bill of exceptions, and no errors are apparent on the face of the record, except as to' the sentence, which is erroneous.

The charge against defendant was for a violation of the prohibition laws in selling, keeping for sale, or other unlawful disposition, of intoxicating liquors. The jury returned a general verdict of guilty, but fixed no fine, which they might have done under section 3 of the act of August 9, 1909 (Gen. & Local Acts Sp. Sess. 1909, p. 9), but which they refrained from doing, as we must infer, under the power of section 7630 of the Code, which provides that: “When [as is the case here] an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine; but, if in their judgment, the defendant should’only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of. the punishment to the court.”

The court, however, in the imposition of the punishment in such case, cannot assess a fine, as this was the prerogative of the jury, but is limited to the imprisonment of defendant in the county jail or to his confinement at hard labor for the county.—Gen. & Local Acts 1909, p. 9, § 3; Spiver v. State, 105 Ala. 126; 16 South. 706; Melton v. State, 45 Ala. 56; Nelson v. State, 46 Ala. 186; Stanfield v. State, 3 Ala. App. 58, 57 South. 402.

Here, the court not only imposed a hard-labor sentence of two months, but also assessed a fine of $75 against defendant.

[203]*203The judgment appealed from is therefore reversed hack to the adjudication of guilt, to the end that the court may impose a punishment and sentence in compliance with the requirements of the law as indicated.

Affirmed in part, that is, as to the judgment of guilt, and reversed and remanded in part, that is, as to the punishment and sentence.

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Bluebook (online)

68 So. 698, 13 Ala. App. 201, 1915 Ala. App. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkey-v-state-alactapp-1915.

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