Opinion
5 Div. 782.
January 14, 1930.
Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.
Robert Bailey was convicted of an offense, and he appeals. Affirmed and remanded for proper sentence.
H. T. Burns, of Wedowee, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Appellant insists that the court erred in failing to give to the jury the general affirmative charge and erred in refusing defendant's motion for a new trial. A sufficient answer to each of appellant's contentions is that the evidence, while circumstantial, tended strongly to prove the defendant's guilt.
However, it is noted that the sentence is for a term the minimum of which is 10 years and the maximum is 10 years. This is a definite, determinate sentence, and does not comply either in the letter or spirit of the law as laid down in section 5268 of the Code of 1923. That section presupposes a period of probation between the minimum and maximum term, to be fixed by the judge, who tried the case. The sentence in this case does not comply with the law. Sanders v. State, 19 Ala. App. 367, 97 So. 294.
There being no error on the trial, the judgment of conviction is affirmed, and the cause is remanded for proper sentence.
Affirmed and remanded.