
    Washington v. The State.
    
      Indictment for Murder.
    
    1. Verdict and judgment; conviction for manslaughter; jury has no right to -prescribe place of punishment. — Under the provisions of the statute, (Code of 1896, § 5412; Code of 1886, § 4492), upon a conviction for felony, the power of the jury is exhausted when, with their verdict of guilty, they fix the period or number of years the punishment is to continue, and they have no right or power to prescribe the place or character of punishment; the right to determine the place or kind of punishment being vested by the statute in the discretion of the judge, who renders judgment and sentence in accordance with the verdict.
    2. Same ; same; same; when verdict sufficient to authorize judgment and sentence by the court. — Where, on'a trial under an indictment for murder, the jury returns the following verdict; “We, the jury, find the defendant guilty of manslaughter in the first degree, and we further assess his punishment at two years hard labor for the county,” that part of the verdict which seeks to prescribe the place or character of the punishment is mere surplusage, and does not render the verdict void, or affect its validity ; but such -verdict is valid and sufficient to support a judgment of conviction and sentence by the court of the defendant to hard labor for the county for two years, the time prescribed by the verdict for the punishment to be imposed.
    Appeal from the City Court of Mobile.
    Tried before the Hon. O. J. Semmes.
    The defendant was indicted and tried for murder, and was convicted of manslaughter in the first degree. Upon the return of the verdict of the jury, which is copied in the opinion, the defendant moved the court in arrest of judgment, upon the ground that the verdict of the jury was contrary to law and was unauthorized, by reason of the fact that under section 4492 of the Code of 1886 (§ 5412, Code of 1896), the jury had no discretion and no authority to fix the kind or character of punishment to be inflicted upon the defendant; and that the only discretion invested in the jury in the case was to fix the period of punishment. This motion was overruled, and the defendant duly excepted. This ruling is the only question presented, for review on the present appeal.
    
      Winfield S. Scott, for appellant,
    cited Gunter v. State, 83 Ala. 96 ; Zaner v. State, 90 Ala. 651; Henderson v. State, 98 Ala'. 35; Ex parte Brown, 102 Ala. 179; Ex parte Goucher, 103 Ala. 305.
    William C. Fitts, Attorney-General, for the State,
    cited Evans v. State, 109 Ala". 11.
   BRICKELL, C. J.

Affirmed.  