
    (118 So. 739)
    WINDHAM v. CITY OF ANDALUSIA.
    (4 Div. 386.)
    Supreme Court of Alabama.
    May 10, 1928.
    Rehearing Denied Nov. 30, 1928.
    For former opinion, see 217 Ala. 450, 116 So. 902,
    A. Whaley, of Andalusia, for appellant.
    E. O. Baldwin, of Andalusia, for appellee.
    Brief did not reach the Reporter.
   FOSTER, J.

We agree with the conclusion of the Court of Appeals that this case should be affirmed. But there is one statement of law, unnecessary to the decision of the case, to which we_ think we" should refer. The statement in the opinion is as follows:

“But, if the case is tried by a jury, as here, the statute makes it the duty of the jury to not only assess the fine, but to impose such hard labor sentence as they may determine, provided such fine and hard labor sentence are within the limits authorized by law or ordinance for such offense.”

The court was construing section 1937, copied in the opinion. This court has given a different interpretation to said Code provision in the case of Thomas v. Mobile, 203 Ala. 96, 82 So. 110. There this court held that on such appeal, tried by the circuit court with a jury, it is.the province of the court to determine and fix hard labor, if any shall be imposed. The act of the jury in that regard is surplusage, and not controlling on the judge. But his sentence to hard labor will be attributed to his own judgment, and as uninfluenced by the verdict of the jury. Such wast the holding- by this court in Ex parte Morrissette, 200 Ala. 488, 76 So. 430:

While we do not concur in that part of the opinion of the Court of Appeals herein quoted, we do concur in the affirmance of the judgment of the trial court.

Application for rehearing is denied.

ANDERSON, C. X, and THOMAS and BROWN, JX, concur.  