Barton v. State

delivered the opinion of the court.

The indictment in this case was manifestly drawn under Code 1906, § 1359, a new statute first introduced by that code. That code went into effect October 1, 1906. The evidence shows *378conclusively that the alleged offense was committed September 1, 1906. No indictment, of course, could have been predicted of this statute for an offense committed before the statute was a law. This point was raised in the court below .and overruled. The trial was proceeded with, and the defendant convicted and sentenced to the penitentiary for five years. Code 1906, § 1359, under which alone manifestly he was indicted—the indictment pursuing the very language of the statute—required the punishment to be for life, unless the jury fixed a shorter term. The verdict of the jury in this case simply found the defendant guilty as charged, without fixing any term of imprisonment at all, and yet the court imposed a sentence of five years. This was erroneous. The defendant was manifestly indicted under this section alone and could have been punished only under this section under an indictment framed specifically on the section with a verdict of guilty as charged in that indictment. The judgment, is reversed and the cause remanded.

• The defendant will be held to answer such proper indictment as may be presented against him.

Reversed.