Opinion
1 Div. 136.
October 28, 1980. Rehearing Denied January 20, 1981.
Appeal from the Circuit Court, Baldwin County, Harry J.
Orson L. Johnson, Curtis W. Gordon, Jr., Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
On April 5, 1978, the Grand Jury of Baldwin County, Alabama, returned an indictment against appellant charging him with manslaughter in the second degree. On July 18, 1978, appellant, in the presence of his retained counsel, was arraigned on said indictment, waived reading thereof, and pleaded not guilty. On September 19, 1979, appellant made a written demand for trial by jury in this case. His demand for a jury trial was denied by the trial court on September 24, 1979. On January 24, 1980, appellant was tried on said indictment by the court without the intervention of a jury. He was found guilty and the court adjudged him guilty as charged and assessed a fine of $500.00 and costs. From the judgment of conviction appellant brings this appeal. We reverse and remand for a new trial.
Section 15-18-20, 1975 Code of Alabama, provides:
"When an offense is punishable by imprisonment in the penitentiary or hard labor for the County, the court must impose the term of punishment, unless the power is expressly conferred on the jury." (Emphasis supplied)
Section 13-1-92, 1975 Code of Alabama, provides:
"Any person who is convicted of manslaughter in the first degree shall, at the discretion of the jury, be imprisoned in the penitentiary for not less than one nor more than ten years, and any person who is convicted of manslaughter in the second degree shall, at the discretion of the jury, be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year and may also be fined not more than $500.00." (Emphasis supplied)
In all homicide cases in which there is an indictment for homicide committed before January 1, 1980, the effective date of Title 13A, Criminal Code, 1975, Code of Alabama, the burden of fixing the punishment is cast by law upon the jury and is a mandatory duty, and the trial court cannot relieve the jury of that duty and responsibility. In these cases Section 15-18-20, 1975 Code, is an express limitation on the power and authority of the court to impose a sentence in manslaughter cases, since that power is expressly conferred on the jury. Ex parte Wesley, 31 Ala. App. 323, 16 So.2d 427; Bankhead v. State, 124 Ala. 14, 26 So. 979; Bates v. State, 170 Ala. 26, 54 So. 432; Powell v. State, 30 Ala. App. 606, 10 So.2d 867; Alford v. State, 243 Ala. 404, 10 So.2d 373. See also Ex parte Jenkins, 38 Ala. App. 117, 76 So.2d 858.
We do not deem it necessary to set forth the evidence in this case. The error of law is apparent on the fact of the record. The court erred in denying appellant's written demand for a trial by jury even though the demand was not made in strict conformity with Section 15-14-30, 1975 Code.
REVERSED AND REMANDED.
TYSON and DeCARLO, JJ., concur.
BOOKOUT, J., dissents with opinion, in which BOWEN, J., joins.
Section 15-18-22, Code of Ala. 1975, provides:
"In all cases in which a statute authorizes or provides that the jury may fix or impose punishment or penalties of any kind, if the case is tried by the court without a jury, the court or judge trying the case may fix or impose any punishment or penalties which the jury might fix or impose if the case were being tried by a jury."
It is therefore my opinion that § 15-18-22, upon which the majority opinion is founded, applies where there is a timely and proper demand for a jury trial, but does not apply in cases where a jury trial is waived, either explicitly or by an untimely demand. There is no doubt that a defendant may voluntarily waive a jury trial in a non-capital case with the consent of the State and the trial court and be tried by the trial judge on a plea of not guilty. Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971); Junior v. State, Ala.Cr.App., 375 So.2d 556 (1979).
A jury demand in a misdemeanor case must be made in conformity with Code § 15-14-30. I do not believe the legislature intended by § 15-18-20 to mandate a jury trial in every misdemeanor manslaughter case. That code section must be construed in pari materia with § 15-18-22, supra.
In Singleton, supra, the supreme court expressed no opinion as to whether a defendant could waive a jury trial in those cases where a jury is required to fix punishment, such as in Code § 13-1-92. That issue was not squarely before that court in Singleton, but is squarely before us now. I believe § 15-18-22 answers the question. Only in capital cases would a different result be mandated, in my opinion, as per Prothro v. State, Ala.Cr.App., 370 So.2d 740 (1979). Therefore, where a defendant fails to comply with § 15-14-30 in demanding a jury trial in a misdemeanor manslaughter case, I conclude that he may be tried without a jury and the trial judge may "impose any punishment or penalties which the jury might fix or impose if the case were being tried by a jury" pursuant to Code § 15-18-22, supra. I therefore respectfully dissent.
BOWEN, J., joins in the above.