
    Spicer v. The State.
    
      Indictment for Assault and Battery.
    
    1. Verdict of guilty; right of court to impose fine. — Where, under an indictment for a misdemeanor the defendant is found guilty, it is the duty of the jury, under the statute (Code, § 4499), to “fix and determine the amount of the fine,” if they adjudge a fine should be imposed ; and if there is a verdict of guilty without assessing a fine (Code, § 4500), the court can not impose a fine.
    2. Charge of court to jury; court transgressing boundary of its province. — Where in a criminal case a witness, who is the half-brother of the prosecutrix, testifies to her bad character, the court transgresses the boundary of its province when it charges the jury, in reference to said witness, that “instead of defending and assisting his half-sister, he comes here to blacken her character, and that fact may be looked to by you for the purpose of saying how much weight you will give to his testimony.”
    3. Same; invading province of the jury. — A charge which instructs the jury that they can not convict on the testimony of a witness whose character for truth and veracity is shown to be bad, invades the province of the jury, and is properly refused.
    4. Impeaching witness; want of chastity no ground. — The want of chastity can not be singled out and made a special ground for impeaching the character of a witness for truth and veracity.
    
      Appeal from the Circuit Court of Baldwin.
    Tried before the Hon. James T. Jones.
    The appellant was indicted, tried and convicted for an assault and battery with a stick or switch upon Polly Ann Spicer and Aurelia Spicer.
    Polly Ann Spicer being introduced as a witness for the State testified that she was the wife of the defendant, and that within 12 months before the finding of the indictment in this case, the defendant committed an assault and battery upon hér and her baby, .Aurelia Spicer, leaving wounds and bruises upon the body of both of them. Two other witnesses were introduced, whose testimony was that they saw bruises upon the persons of Polly Ann Spicer and her baby, Aurelia Spicer, within a few days after the assault and battery were said to have been committed.
    John Williams, a half-brother of Polly Ann Spicer, testified that Polly Ann Spicer’s reputation in the community in which she lived was bad, and that her general reputation for truth and veracity was bad. This witness, on cross-examination, was asked the following question : “If the bad character of the witness, Polly Ann Spicer, was not that she was unchaste?” The witness answered : “that while she had the reputation of being an unchaste woman, her bad reputation was not confined to her want of chastity.” The testimony of William Bass and Joe Gentry, witnesses for the defendant, was the same as that of John Williams. Each of these witnesses also testified that the defendant bore a good character in the neighborhood in which he lived, and his general reputation was that of a peaceable and quiet man. The defendant’s good reputation was also proven by another witness. The defendant, on being examined as a witness, testified that he did not commit the alleged assault. He further testified that he was not living with his wife, and they had been separated some two years. In answer to questions by the court, the defendant said that “he had lived with his wife some six or eight years, and that when he married her she had a good reputation.” The court in its general charge, among other things, instructed the jury as follows: (1.) “That in order to impeach the character of a witness it was not proper to single out the fact that she was unchaste.” (2.) “The witness John Williams, the half-brother of Polly Ann Spicer, instead of defending and assisting his half-sister comes here to blacken her character, and that fact may be looked to by you for the purpose of saying how much weight you will give to his testimony.” (3.) “The defendant testified that he lived with Polly Ann Spicer, his wife, for six or eight years ; that -when he married her, her character was good. He now comes before you and tells you her character is bad; and the court charges you that as the defendant has put his own character in issue, his statement that his wife’s character was good when he married her and is bad now, may be looked to by the jury to impeach his own character, and you are to say from such evidence what sort of a character he has.” The defendant separately excepted to each of these portions of the court’s general charge, and also separately excepted to the court’s refusal to give each of the following charges requested by him: (1.) “The court charges the jury that while the character of a witness for chastity can not be singled out to impeach her credibility, still the fact that the witness is a person of unchaste character is one of the constituents that make up her general character.” (2.) “The court charges the jury that if they believe from the evidence that the general character of Polly Ann Spicer for truth and veracity is bad, they may disregard her testimony.” (3.) “The court charges the jury that they should not convict the defendant on the uncorroborated testimony of the witness Polly Ann Spicer, if they believe that the evidence shows her to be unworthy of credit.” (4.)“The court charges the jury that if they believe from the evidence that the testimony of the witness Polly Ann Spicer is shown to be unworthy of credit, and if they further find that Polly Ann Spicer is the only witness who testifies that the defendant committed the assault charged, they should find the defendant not guilty, unless there is other evidence corroborating her testimony.”
    Wm. S. Anderson and Samuel B. Browne, for appellant.
    W. C. Fitts, Attorney-General, for the State.
   COLEMAN, J

The defendant was indicted for. an assault with a stick or switch. On the trial the jury returned a verdict as follows : “"We the jury find the defendant guilty,” and upon this verdict the court “adjudged that the defendant pay a fine of fifty dollars and cost,” and sentenced the defendant to hard labor to pay said fine imposed by the court, and imposed an additional term of hard labor for three months.

The statute is specific, that the jury “shall fix and determine the amount of the fine.” — Cr. Code, § 4499. It is also provided that when an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury “shall not be required to impose a fine, if, in their judgment, the defendant should only be punished in some other mode, but may, in such case, only find him guilty, and leave the imposition of the punishment to the court.” — Code, § 4500. It has been expressly decided, that when a party is tried upon an indictment for an assault and battery, a “verdict of guilty by the jury, without assessing a fine, does not authorize the court to impose a fine upon the defendant.”—Melton’s Case, 45 Ala. 56; Nelson’s Case, 46 Ala. 186. The verdict in the case at bar is sufficient to support the judgment and sentence to hard labor for three months, and for the cost, and if there were no other errors, we would remand the cause, that the court might correct the error of the judgment of the court, and enter a proper judgment and sentence.

During the trial, the defendant introduced as a witness, John Williams, a half-brother of the person alleged to have been assaulted. The testimony of the brother tended to impeach the credibility of the witness, who testified for the State to the assault upon her. In its charge to the jury, the court stated : “The witness, John Williams, the half-brother of Polly Ann Spicer, instead of defending and assisting his half-sister, comes here to blacken her character, and that fact may be looked to by you for the purpose of saying how much weight you will give to his testimony.” In this charge the court stated it to the jury, as a fact in the case, that John Williams had come there for the purpose of blackening the character of his half-sister. We will not.comment on this' charge further than to say, the court palpably transgressed the boundary of its province. Want of chastity can. not be singled out and made a special ground for. impeaching the character of a witness for truth and veracity.—Prior v. The State, 99 Ala. 196; Rhea v. The State, 100 Ala. 119, and authorities.

A charge which instructs a jury that they can not convict on the testimony of a witness against whom impeaching testimony has been offered, invades their province and is properlv rejected.-—Paul v. The State, 100 Ala. 136.

Reversed and remanded.  