The opinion
*96 BRIOKEN, Presiding Judge.
This appellant was indicted for rape. The alleged injured party was Florida Harden, who the evidence disclosed was his own daughter, a girl about the age of 16 years, and upon her evidence the state relied for a conviction.
Upon conviction for rape the law makes it the express and sole duty of the jury, in its discretion, to fix the punishment, Code 1923, § 5407; and in charging the jury in this case the learned trial judge correctly stated the law in this connection.
■ The jury, however, disregarded the court’s instructions and returned into court the following verdict, to wit: “We, the jury, find the defendant guilty as charged in the indictment.’’ The court received this verdict of the jury on November 17, 1932, and the jury, which had been selected from a special venire, as the law requires, were dispersed. On November 18,1932, the court passed sentence upon appellant and fixed his punishment at imprisonment in the penitentiary for a term of ten years.
The language of the statute, supra, very clearly expresses the legislative purpose that the punishment in cases of this character shall be fixed by the jury, and it has never been supposed that the jury might in such eases leave the punishment to the court. The court, therefore, has no discretion in affixing the punishment and it transcended its authority in so doing. Error to a reversal must be held in this connection. Hawes v. State, 19 Ala. App. 280 , 97 So. 114 ; Bates v. State, 170 Ala. 26 , 54 So. 432 ; Washington v. State, 125 Ala. 40 , 28 So. 78 .
It might and should be stated, however, that the defect in the verdict and the erroneous sentence of the court thereon do not entitle the defendant to his discharge as for having been once put in jeopardy, but constitutes simply reversible error. Washington v. State, supra; Cobia v. State, 16 Ala. 781 ; Brown v. State, 109 Ala. 76 , 20 So. 103 .
We are urged by the state to invoke Supreme Court Rule 45, upon the theory that as the court fixed the minimum punishment the defendant was in nowise prejudiced. This we cannot do, upon authority of Brown v. State, supra. As stated, the statute peremptorily requires the jury to ascertain and fix the punishment by its verdict, and in cases of this character, if this is not done, the court has no power to render judgment at all.
Other questions are presented, but the points of decision thus involved have been, in numerous decisions, heretofore decided by the appellate courts of this state, and it would serve no good purpose to discuss them further.
For the error indicated the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.
Reversed and remanded.