Hudson v. State, 33 Ala. App. 217, 31 So.2d 771; Id., 249 Ala. 372, 31 So.2d 774; Scott v. State, 20 Ala. App. 360, 102 So. 152. It is the duty of the court and not the jury to fix punishment for violation of ยง 131, supra. Conner v. State, 20 Ala. App. 613, 104 So. 554. On timely motion to quash indictment for lack of legal testimony before the grand jury to convict defendant with commission of the offense, it was the duty of the court to order hearing thereon. Gore v. State, 22 Ala. App. 136, 114 So. 791. Until state has offered sufficient proof of corpus delicti, confessions or admissions of defendant are not admissible in evidence.
The indictment was in code form and was sufficient against demurrer. Code 1940, Title 15, Section 259, Subsec. 76; Smith v. State, 36 Ala. App. 646, 62 So.2d 473; Conner v. State, 20 Ala. App. 613, 104 So. 554. The Attorney General's brief concisely states the Sheriff's testimony in this manner:
"In this connection we call your attention to the following decisions of this Court on the question involved. Salter v. State, 17 Ala. App. 517, 85 So. 847; Abrahams v. State, 18 Ala. App. 252, 89 So. 853; Farley v. State, 20 Ala. App. 105, 101 So. 69; Conner v. State, 20 Ala. App. 613, 104 So. 554; Lockett v. State, 22 Ala. App. 642, 119 So. 245; Shearls v. State, 23 Ala. App. 211, 123 So. 104; Jones v. State, 23 Ala. App. 384, 125 So. 898. "All of which is respectfully submitted."
The governing statute expressly provides as a punishment for the violation of these statutes confinement at hard labor in the penitentiary for not less than one year nor longer than five years, to be fixed within these limits by the court or judge trying the case. It has been held that this statute is mandatory. Conner v. State, 20 Ala. App. 613, 104 So. 554. A person convicted of these offenses cannot be sentenced to hard labor for the county, as was done in this case, but must be sentenced to an indeterminate term of imprisonment in the penitentiary. The case of Farley v. State, 20 Ala. App. 105, 101 So. 69, is in point.