
    (119 So. 245)
    LOCKETT v. STATE.
    (2 Div. 399.)
    Court of Appeals of Alabama.
    June 30, 1928.
    Rehearing Granted Nov. 13, 1928.
    Rehearing Stricken Dec. 18, 1928.
    Foster, Rice & Foster, of Tuscaloosa, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
    Brief did not reach the Reporter.
   PER CURIAM.

After reading the evidence and considering this record en banc, the court is of the opinion that the evidence of the state and • the inferences to be drawn therefrom are not sufficient to overcome the presumptions of innocence, and that this conviction should not be allowed to stand.

There is no authority of law to sentence a defendant to an indeterminate sentence at hard labor for the county. When the punishment is indeterminate, the sentence must be to the penitentiary. Code 1923, § 5268. ,

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

Original opinion withdrawn. Opinion substituted. Rehearing granted, judgment reversed, and the cause is remanded.  