Legal Punishments Specified. CHAPTER 278. PUNISHMENTS, JUDGMENTS, AND SENTENCES. 7620-7654. ARTICLE 1. ARTICLE 3. ARTICLE 4. ARTICLE 5. ARTICLE 6. LEGAL PUNISHMENTS SPECIFIED. 7620-7621. 7631-7635. JUDGMENT, CONFESSION OF, IMPRISONMENT IN COUNTY JAIL OR ARTICLE 7. DEATH SENTENCE, EXECUTION OF. 7639-7652. ARTICLE 8. STATEMENT OF PRESIDING JUDGE. 7654. ARTICLE 1. LEGAL PUNISHMENTS SPECIFIED. 7620, 7621. SECTION. 7620. Legal punishments specified; when court may sentence to SECTION. 7621. Benefit of clergy. 7620. (5412) (4492) (4450) (3755) (208) Legal punishments specified; when court may sentence to hard labor.—The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by hanging. And in all cases in which the period of imprisonment in the penitentiary or hard labor for the county is more than two years, the judge must sentence the party to imprisonment in the penitentiary; and in all cases of conviction for felonies, in which such imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion, any other section of this Code to the contrary notwithstanding; and in all cases in which the 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. For origin and history of statutes as to punishments, see Toulmin's Digest, pp. 206, 216, 229. (Aikin's Digest, p. 107, § 36; Mar. 7, 1876, p. 287, § § 1, 2) Imprisonment as a legal punishment for crime is authorized for three purposes; first, as a penalty for the offense, and it may be in the penitentiary, in the county jail, or to hard labor for the county; second, to enforce payment or satisfaction of fine imposed, this may be imprisonment in county jail or to Legal Punishments Specified. hard labor; third, to enforce payment of costs, which must be to hard labor for the county.-Ex parte Joice & Smith, 88 Ala. 128 (7 So. 3). There can be a lawful sentence to imprisonment or hard labor to pay costs without a previous preliminary judgment against the accused to perform hard labor for the county, though it is not in accordance with the letter of the law.-Ex parte Joice & Smith, 88 Ala. 128 (7 So. 3). "The letter of the law killeth and the spirit giveth life." An interpretation should never be given a law which would defeat the obvious purpose of it, if any other reasonable construction can be given it.-Ex parte Joice & Smith, 88 Ala. 128 (7 So. 3). Different crimes are differently punished; some misdemeanors are punishable by fine only, others by fine and imprisonment or hard labor, and in all cases if the imprisonment is for 12 months or less it must be in the county jail or to hard labor for the county.-Ex parte Long, 87 Ala. 46 (6 So. 328). Juries have no right or power to prescribe the place or character of punishment, when power to determine place or kind of punishment is vested in the judge.-Washington v. State, 117 Ala. 30 (23 So. 697). When the jury fixes the period of punishment at not more than one nor less than two years, the place and manner of confinement or hard labor is left to the discretion of the presiding judge.— Henson v. State, 120 Ala. 316 (25 So. 23). If two statutes are in conflict as to punishment, the latter one must control.-Bibb v. State, 83 Ala. 84 (3 So. 711). When court may impose a sentence for two years at hard labor in the penitentiary. Ib.; Washington v. State, 75 Ala. 582. When a fine is imposed, if not paid or secured, together with the costs, defendant may be sentenced to hard labor or imprisonment in the county jail.—Kirby v. State, 62 Ala. 51. Hard labor for the county is under the control of the county commissioners.— Kirby v. State, 62 Ala. 51. An irregular sentence which would be reversed on appeal is not absolutely void, so as to authorize a discharge upon habeas corpus.-Ex parte Simmons, 62 Ala. 416. The term of imprisonment or to hard labor is the province of the court and not of the jury to fix.-Ex parte Simmons, 62 Ala. 416. Liability of county for medical attention to prisoners confined in jail. Malone v. Escambia Co., 116 Ala. 214 (22 So. 503). This section is construed to amend and control other sections of this Code prescribing place of punishment, so far as they are in conflict with it; hence, in all cases, if sentence be for more than two years, it must be to the penitentiary; if for more than one year and not more than two, it may, in the discretion of the judge, be either to the penitentiary, or hard labor for the county, or the county jail; if for one year or less, it must be to hard labor for the county, or to the county jail.-Ex parte Thomas, 113 Ala. 1 (21 So. 369); Evans's case, 109 Ala. 11 (19 So. 535); Ex parte Brown, 102 Ala. 179 (15 So. 602); Ex parte Goucher, 103 Ala. 305 (15 So. 601); Henderson's case, 98 Ala. 35 (13 So. 146); Zaner's case, 90 Ala. 651 (8 So. 698); Herrington's case, 87 Ala. 1 (5 So. 831); Gunter's case, 83 Ala. 96 (3 So. 600); Hobbs' case, 75 Ala. 1; Steele's case, 61 Ala. 213. On plea of guilty to charge of embezzlement, sentence to one year in the penitentiary erroneous.-Herrington's case, 87 Ala. 1 (13 So. 146); in such case the sentence will be reversed back to conviction and the cause remanded for proper sentence.-Ib. On conviction for manslaughter in first degree, the jury have no authority to prescribe one year in the penitentiary; if sentence passed in pursuance of such verdict, the judg ment of conviction will be reversed on appeal. Zaner's case, 90 Ala. 651 (8 So. 698) (distinguishing Herrington's case, supra). Or defendant discharged on habeas corpus.-Ex parte Brown, 102 Ala. 179 (15 So. 602). The court should not receive such a verdict until corrected.-Ib.; Ex parte Goucher, 103 Ala. 305 (15 So. 601). If received, but disregarded as to place of punishment and defendant sentenced to hard labor for the county for one year, he will not be discharged on habeas corpus.-Ex parte Goucher, 103 Ala. 305 (15 So. 601). The discretion of the jury is exhausted in fixing the time or number of years the punishment is to continue, the law fixing the place or, within the limits here fixed, leaving to the discretion of the judge.-Evans's case, 109 Ala. 11 (19 So. 535). Hence a verdict in manslaughter, fixing punishment at fifteen months in the penitentiary, will support sentence to hard labor for the county for that term.-Ib. And additional term for costs.-Ib. The punishment being fixed by the jury at two years, the court has authority to sentence to hard Punishment Fixed by the Court. labor for the county for that period.-Henderson's case, 98 Ala. 35 (13 So. 146). For grand larceny, the time being fixed at one year, defendant properly sentenced to hard labor for the county for that period.-Ex parte Thomas, 113 Ala. 1 (21 So. 369). And additional term for costs.-Ib. For forgery in second degree, two years having been fixed upon, the court may sentence to penitentiary, or to hard labor for the county; and, to latter sentence, may add sentence for costs.-Hobbs's case, 75 Ala. 1. Sentence to hard labor in penitentiary is, in substance and legal effect, a sentence to imprisonment in the penitentiary.-Brown's case, 74 Ala. 478. Verdict fixing punishment at "thirty months' hard labor" authorizes and requires sentence to penitentiary for that period.-Gunter's case, 83 Ala. 96 (3 So. 600). Sentence to longer or shorter term than allowed by law, is void.-Brown's case, 47 Ala. 47; Ex parte Brown, 102 Ala. 179 (15 So. 602). Verdiet fixing penalty at "imprisonment for life" will support sentence to penitentiary for life.-McGuff's case, 88 Ala. 147 (7 So. 35). As to sentence for costs, see note to § 7635 (5426). 7621. (5413) (4493) (4451) (3756) (209) Benefit of clergy. -There is no benefit of clergy in this state. Abolished in 1802. Toulmin's Digest, p. 216, § 55. (Aikin's Digest, p. 107, § 37.) ARTICLE 2. OFFENSES NOT SPECIALLY PROVIDED FOR. 7622. 7622. (5414) (4192) (4447) (3754) (207) Misdemeanor for which no special punishment has been provided.-Any person who commits a public offense, which is a misdemeanor at common law, or by statute, and the punishment of which is not particularly specified in this Code, must, on conviction, be fined not more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months. (Aikin's Digest, p. 107, § 35; Clay's Digest, p. 441, § 23.) Punishment for profane swearing.-Goree v. State, 71 Ala. 7. Power of municipal court to punish. Woodruff v. Stewart, 63 Ala. 206. Offense of keeping disorderly house. Sparks v. State, 59 Ala. 82. Attempt to commit a felony or a misdemeanor is a misdemeanor.-Berdeaux v. Davis, 58 Ala. 611. The offense of being a common prostitute or of keeping a bawdy house, punishment for.Wooster v. State, 55 Ala. 217; Ex parte Birchfield, 52 Ala. 377. See Redman's case, 33 Ala. 428. 7623. (5415) (4494) (4484, 4506) (3782, 3806) (258) Punishment; when fixed by the court.-When an offense is punish 55-AC-VOL. III Punishment Fixed by the Court. able by imprisonment in the penitentiary, or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury. Court may sentence defendant to hard labor in addition to fine imposed by the jury.-Brown v. State, 141 Ala. 80 (37 So. 408). The justice of imposing costs upon a criminal is a question purely of legislative policy; if the statute provides for the payment of costs by imprisonment or hard labor, it does not violate the constitutional inhibition against imprisonment for debt.-Ex parte Joice & Smith, 88 Ala. 128 (7 So. 3). When court may substitute hard labor or imprisonment, as punishment, for fine.-Ex parte Birchfield, 52 Ala. 377. Plea of guilty in case of misdemeanor, punishment fixed by the court and not by the jury. Drake v. State, 60 Ala. 42. The jury may simply render a verdict of guilty or they may assess a fine in addition, but in either event the court must impose the punishment of imprisonment in county jail or hard labor for the county, if such punishment be imposed. If the jury should impose fine and inflict punishment, the punishment inflicted would be a mere surplusage.-Martin v. State, 125 Ala. 64 (28 So. 92). When law requires court to fix punishment, error to leave to jury.-Leoni's case, 44 Ala. 110. Verdict of guilty merely does not authorize court to fix a fine.-Melton's case, 45 Ala. 56. Verdict of guilty where the fine is fixed by statute.-McPherson's case, 54 Ala. 221. Does not authorize court to impose fine.-Melton's case, 45 Ala. 56. When court imposes punishment on plea of guilty of misdemeanor. -Drake's case, 60 Ala. 42. When jury imposes fire and court imposes punishment.-Bibb's case, 83 Ala. 84 (3 So. 711); Leonard's case, 96 Ala. 108 (11 So. 307); Taylor's case, 114 Ala. 20 (21 So. 947). See, also, note to § 7620 (5412). 7624. (5416) (4495) (4507) (3807) (259) Imprisonment; may be for life, if no limit prescribed.—When no maximum limit to the duration of the imprisonment is prescribed by law, the court may, in its discretion, sentence the offender to imprisonment for the term of his natural life. (Clay's Digest, p. 441, § 20.) 7625. (5417) (4496) (4509, 4510) (3809, 3810) (261, 262) Sentence on second conviction for same offense.-On a second conviction of the same offense committed after the convict has served out his term of punishment on the former conviction, or has been pardoned, he must be sentenced to a longer term than before, by at least one-fourth of the former term, unless that exceeds the longest term prescribed by law; and the provisions of this section apply where the first conviction was in another state. (Clay's Digest, p. 440, § 17.) 7626. (5418) (4497) (4483) (3781) (234) Shortest term of labor ten days.-Punishment by hard labor for the county shall never be for a less period than ten days. 7627. (5419) (4498) (4485) (3783) (235) Imprisonment in county jail; by whom imposed.-When an offense is punishable by imprisonment in the county jail, such imprisonment Punishment Determined by the Jury. must be imposed by the court, unless the discretion is expressly conferred on the jury. If the statute fixes with certainty the fine, the jury can neither increase nor diminish. When imprisonment in the county jail but not hard labor may be added to the fine.-McPherson v. State, 54 Ala. 221. Power to imprison in petit larceny vested in judge, not in jury.-Moss's case, 42 Ala. 546. Also, in case of libel, may add imprisonment to fine.-Reid's case, 53 Ala. 402. Court may fix measure of punishment where a fine is imposed by jury in petit larceny.-Lacey's case, 58 Ala. 385. And for keeping gaming table.-Bibb's case, 83 Ala. 84 (3 So. 711). And for arson in third degree.-Leonard's case, 96 Ala. 108 (11 So. 307). See, also, note to § 7620 (5412). 7628. Punishment by imprisonment in county jail or at hard labor for county, sentence for suspended or remitted.—When the court imposes additional punishment where a fine has been assessed by a jury, or in any case where the court is authorized to impose such punishment at imprisonment in the county jail or at hard labor for the county, the court may, in its discretion, suspend the execution of such sentence until a subsequent term of the court and may then order it to be executed or remit the same, or further suspend the execution of the sentence. 7629. (5420) (4499) (4452) (3757) (210) Fines assessed by jury; how remitted or reduced. In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of his court. For origin and history of statutes as to punishment, see Toulmin's Digest, pp. 206, 216, 229. (Clay's Digest, p. 441, § 21; Mar. 6, 1875, p. 184.) Where a verdict was, "we, the jury, find the defendant guilty of assault and battery and assess a fine of $10 and sentence to the county for thirty days' labor,' held verdict was not void, but that the addition of hard labor for the county was surplusage.-Taylor v. State, 114 Ala. 20 (21 So. 947). When fine cannot be fixed by the court, but must be fixed by the jury; what judgment should be rendered on a failure to pay fine and costs.-Nelson v. State, 46 Ala. 186. Fine must be imposed by jury, on plea of guilty of assault with pistol, under indictment for assault to murder.-Melton's case, 45 Ala. 56. Also for retailing without license.-McPherson's case, 54 Ala. 221. Fines must be imposed by jury. Spicer's case, 105 Ala. 123 (16 So. 706); Leonard's case, 96 Ala. 108 (11 So. 307); Golson's case, 86 Ala. 601 (5 So. 799); Bibb's case, 83 Ala. 84 (3 So. 711). 7630. (5421) (4500) (4453) (3758) (211) When jury need not impose fine, but leave punishment to court. When an |