holding that when aggregate of consecutive sentences for misdemeanor offenses is greater than two years’ confinement in the county jail, defendant should be sentenced instead to state penitentiary
How later courts described this case
- holding that when aggregate of consecutive sentences for misdemeanor offenses is greater than two years’ confinement in the county jail, defendant should be sentenced instead to state penitentiary
Written by the judges who cited it.
The opinion
BBICKE-N, j.
(dissenting). I concur in the conclusion reached in the majority opinion that there is no error in the judgment of conviction. The error committed by the trial judge was in sentencing the defendant to hard labor for the county for a period of time exceeding 2 years, as prescribed by section 6583 of the Code, 1907.
The defendant was convicted under the indictment for six separate and distinct misdemeanors. The punishment imposed for each of those misdemeanors was less than 2 years. My Brothers hold that because the aggregate punishment imposed exceeds 2 years, the defendant should have been sentenced to the penitentiary, instead of hai’d labor for the county, and in support of this holding rely upon section 7620 of the Code of 1907. The effect of their holding is to emasculate and destroy section 6583 of the Code, and in doing so they violate every well-known rule of construction of statutes. It is elementary that where it is possible to do so, statutes in pari materia must be so construed as to give a field of operation for both. The two statutes, namely, sections 6583 and 7620 of the Code of 1907, may be construed so as to absolutely relieve them of all conflict. When taken together with other sections of the Criminal Code it is entirely clear that section 7620 has no application to this case. Most manifestly, the quoted language of that section in the majority opinion has reference solely to felonies; that section deals only with the punishment for a single conviction, and not with aggregate sentences, where there are several convictions of a misdemeanor, as here. .Nowhere can there be found provided as a punishment for the conviction of a single misdemeanor hard labor for the county for more than 2 years. That statute does not attempt to regulate punishment wdiere there are several convictions, as here, of several misdemeanors. The lawmaking body, by section 6583 of the Code of 1907, undertook and did prescribe the limitation as to the punishment in case of conviction of several misdemeanors, fixing the maximum punishment at hard labor for the county not exceeding 2 years.
Under our statutory system, crimes are classified as misdemeanors and felonies; and in no statute creating and defining a crime as a misdemeanor can there be found as a punishment for that crime imprisonment in the penitentiary. In numbers of statutes defining felonies and fixing the punishment for that offense, there may be found that the penalty provided is hard labor for the county, or imprisonment in the county jail, and of course in many of them, the punishment imposed is imprisonment in the penitentiary. The distinguishing feature, under our statutory system, in the classification of crimes, namely, njisdemeanors and felonies, is predi
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cated upon the character of the punishment imposed; to repeat, for a conviction of a misdemeanor, the punishment invariably fixed by the statute is a fine, or hard labor for the county, or imprisonment in the county jail, but never imprisonment in the penitentiary. Crimes and offenses in this state are divided into felonies and misdemeanors. All crimes which are punishable capitally, or by imprisonment in the penitentiary, are felonies. All others are misdemeanors, which are punishable by fine or imprisonment, or both. Clifton v. State, 73 Ala. 476 ; State v. Hunter, 67 Ala. 83 ; 1 Mayfield’s Dig. 258, 4.
“A felony within the meaning of this Code, is a public offense which may be punished by death, or by imprisonment in the penitentiary; all other public offenses are called misdemeanors.” Code 1907, § 6756.
In the instant case, the punishment provided for the offenses of which the defendant was convicted characterizes them as misdemeanors, and a misdemeanant, as such, cannot be sentenced to the penitentiary under the laws of this state.