
    21 So.2d 705
    FULLER v. STATE.
    4 Div. 872.
    Court of Appeals of Alabama.
    April 10, 1945.
    W. R. Belcher and J. B. Hicks, both of Phenix City, for appellant.
    Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
   CARR, Judge.

Error appears upon the face of the record in this cause.

Appellant was tried and convicted under an indictment charging carnal knowledge of a girl over twelve and under sixteen years of age.

The jury returned the following verdict: “We, the jury, find the defendant guilty. (Signed) Leo Dennis, Foreman.” On this verdict the trial judge adjudged the defendant guilty and imposed a sentence for a period of six years in the State penitentiary.

The prosecution is based on Section 399 of Title 14, Code 1940. This statute provides that the jury, and not the court, shall fix the punishment in the event of conviction. The verdict of the jury in this case, therefore, will not sustain the judgment of sentence. For the unauthorized action of the primary court, the judgment is reversed and the cause is remanded. Washington v. State, 125 Ala. 40, 28 So. 78; McKinney v. State, 17 Ala.App. 474, 86 So. 121; Hawes v. State, 19 Ala.App. 280, 97 So. 114; Smith v. State, 23 Ala.App. 106, 121 So. 692; Tanner v. State, 23 Ala.App. 116, 121 So. 693.

Reversed and remanded.  