
    Lewis v. The State.
    Murder..
    (Decided Jan. 11, 1912.
    Rehearing granted Jan. 30, 1912.
    57 South. 1012.)
    1. -Appeal and Error; Bill of Exceptions'; Necessity. — Where there is no error of record and no bill of exceptions has been filed, and the time for filing same has expired, the conviction will be affirmed.
    2. Same; Determination; Reversal in Part. — Where a conviction is erroneous 'in imposing hard labor in lieu of costs, the sentence will be reversed back to the judgment of guilt, and the case remanded for proper sentence.
    3. Costs; Imprisonment for Non-Payment; Sentence.- — Where the verdict sentenced the defendant to one day in the county jail, but assessed no fine, the sentence of the court imposing hard labor in lieu of the payment of the costs, is erroneous.
    Appeal from Montgomery City Court.
    Heard before Hon. Armstead Brown.
    Joe Lewis was indicted for murder, convicted of manslaughter in the second degree, and he appeals:■
    Affirmed in part, and in .part reversed and remanded.
    The verdict of the jury was: We, the jury find the defendant guilty of manslaughter in the second degree, and fix the punishment at one day in the county jail. The judgment after fixing the punishment in the county jail orders and adjudges that the defendant perform hard labor for an additional term of 192 days, for the payment of costs, at the rate of 75 cents per day, and fixes the beginning and ending of the term.
    John A. Elmore, for appellant.
    The judgment sentencing the defendant to an additional term for costs, was erroneous. — Sec. 7092, Code 1907; Sec. 7623, Code 1907.
    R. C, Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
   PEE CURIAM.

No bill of exceptions is included in the record, and the time for filing has expired. There is no error shown by the record, and the case is affirmed.

Affirmed.

On Application for Rehearing.

This case was before the court on appeal on the rec ord, without a bill of exceptions and no brief was filed by the appellant. On application for rehearing the appellant directs the court’s attention to the judgment of the court sentencing the defendant to hard labor for the costs, when the punishment imposed was imprisonment in the county jail for the term of one day and no fine was assessed. The sentence of the court, imposing hard labor in lieu of payment of the costs, is erroneous.—Ex parte Hill, 122 Ala. 114, 26 South. 230; Hollis v. State, 123 Ala. 74, 26 South. 231.

The application for a rehearing is granted, and. the judgment of the court reversed back to the judgment of guilt, and the case remanded, that proper judgment may be entered.—Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 116; Evans v. State, 109 Ala. 11, 19 South. 535; Johnson v. State, 94 Ala. 35, 10 South. 667; Herrington v. State, 87 Ala. 1, 5 South. 831.

Application granted, and judgment of the court below affirmed in part, and reversed and remanded in part.  