Opinion
6 Div. 848.
April 10, 1941.
DeGraffenried McDuffie, of Tuscaloosa, for petitioner.
Where the verdict of the jury does not provide for a fine being assessed, the trial court is without authority to impose upon defendant hard labor in lieu of payment of costs. Mills v. State, 29 Ala. App. 106, 191 So. 922. Where jury is deliberating in jury room as to guilt or innocence of defendant, the court has no right to voluntarily interrupt the deliberations by bringing the jury back into the court room and ordering them to go out and fix a fine on defendant.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., opposed.
The holding of the Court of Appeals that the additional instruction given the jury was free from reversible error upon a consideration of the entire charge is sustained on examination of the record.
The excerpt quoted in the opinion was only a part of the supplemental instruction. The court proceeded at the time to reassert there should be no conviction unless satisfied of guilt from the evidence beyond a reasonable doubt; and further instructed, that if they so found, they need not impose a fine, but in their discretion, could leave the punishment to be fixed by the court. Code of 1923, § 5268.
That the jury was not misled is indicated by the fact that they did not assess a fine, but expressly by their verdict, left the fixing of punishment to the court.
The court having imposed hard labor for the county as a punishment for the offense, there was no error in imposing a further period of hard labor for costs. Code of 1923, § 5291.
Writ denied.
GARDNER, C. J., and FOSTER, and LIVINGSTON, JJ., concur.