Perry v. State , 28 Ala. App. 259 ( 1938 )

We have endeavored to perform our duty under the provisions of Code 1923, Sec. 3258, but we find nothing to require a reversal of the judgment of conviction.

Appellant, however, was on trial for, and convicted of the offense of assault with intent to murder (Code 1923, Sec. 3303); and his punishment should have been fixed by the court in accordance with the terms of Code 1923, Secs. 5278, 5267, 5268 and 3303.

So much of the jury's verdict as undertook to fix the punishment to be imposed may be disregarded as surplusage. Freeman v. State, 151 Ala. 10, 44 So. 46.

The judgment of conviction is affirmed; and the cause remanded to the lower court for sentence in accordance with the above.

Affirmed. Remanded for proper sentence.