
    (121 So. 692)
    SMITH v. STATE.
    (3 Div. 634.)
    Court of Appeals of Alabama.
    April 2, 1929.
    See, also, ante, p. 72, 121 So. 692.
    Hamilton & Caffey, of Brewton, for appellant.
    Charlie C. McCall, Atty. Gen., for the. State.
   RICE, J.

Appellant was regularly indicted and tried for the offense denounced by Code 1923, § 5411. The jury trying the case returned a verdict as follows: “We the jury find the defendant guilty as charged in. the indictment.” Whereupon, and over appellant’s protest, the trial judge proceeded to “fix- the punishment” and to sentence the appellant. This was in contravention of the" plain terms of the statute (Code 1923, § 5411, supra), which are that one convicted, as appellant, .be punished (within certain limits) “at the discretion of the jury.’’ (Italics ours.) And for this unauthorized and erroneous action of the court, the judgment is reversed, and the cause remanded. Code 1923, § 5411; Ex parte I-Ieabecn Tanner, 219 Ala. 7,121 So-. 423.

No other questions are apparent.

Reversed and remanded.  