Opinion
8 Div. 639.
June 30, 1938.
Appeal from Law and Equity Court, Lauderdale County; Robt. M. Hill, Judge.
Dave Smith was convicted of petit larceny, and he appeals.
Affirmed; remanded for proper sentence.
Henry D. Jones, of Florence, for appellant.
A. A. Carmichael, Atty. Gen., for the State.
The corpus delicti was proven without dispute or conflict. There was ample evidence adduced upon the trial to sustain the verdict of the jury finding the defendant guilty of petit larceny, the offense charged and upon which he was tried. The defendant denied his guilt, making therefore a jury question.
Several exceptions were reserved to the court's rulings upon the admission of evidence. These have each been examined and are of such trivial character they need not be discussed, as no error of a reversible nature appears in any of the rulings complained of.
Such of the refused charges as properly stated the law were fairly and substantially covered by the oral charge and by the charges given at the request of defendant.
We note that the jury fixed the punishment at three months hard labor for the county. This duty is conferred upon the jury by section 4908 of the Code 1923. The court properly sentenced the defendant to hard labor for the county for a sufficient number of days to pay the cost incurred upon the trial at the rate of 75 cents per day. However, the court failed to also sentence the defendant to perform hard labor for the county for a period of three months in accordance with the verdict of the jury. This omission in no manner affects the judgment of affirmance as to the guilt of the accused hereby determined and ordered, but the cause must be remanded to the lower court for proper sentence also as to the punishment prescribed by the jury in their verdict.
The judgment of conviction from which this appeal was taken is affirmed and the cause remanded for proper sentence.
Affirmed. Remanded for proper sentence.