#### Dorothy Gray ELMORE v. STATE.

1 Div. 635.

Court of Criminal Appeals of Alabama.

March 30, 1976.

Rehearing Denied May 4, 1976.

*263Donald E. Brutkiewicz, Mobile, for appellant.

William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

> “The GRAND JURY of said County charge, that, before the finding of this indictment DOROTHY GRAY ELMORE whose name is to the Grand Jury otherwise unknown than as stated, did while intoxicated, drive a motor vehicle upon or along Old Pascagoula Road a public highway in Mobile County, Alabama, against the peace and dignity of the State of Alabama. CHARLES R. BUTLER, JR., District Attorney for the 13th Judicial Circuit of Alabama (County of Mobile)”.

She was represented by retained counsel at arraignment and trial. She pleaded not guilty.

The jury returned a verdict in the following form:

> “We, the jury, find the defendant guilty of driving while intoxicated, as charged in the indictment.”

The indictment was brought pursuant to the provisions of Title 36, Section 2, Code of Alabama 1940, which provides among other things that upon conviction the accused shall be fined not less than $100.00 nor more than $1,000.00.

It is to be noted that the jury did not assess a fine or decline to fix a fine. The trial judge assessed a fine of $150.00 and in lieu of the payment of the fine, he sentenced appellant to the Mobile County Jail for a term of fifty (50) days.

Title 15, Section 335, Code of Alabama 1940, provides as follows:

> “In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of the court.”

Under this section the trial court had no authority to impose a fine.

If the jury fails to impose or assess a fine, the trial judge is without authority to do so. *Carpenter v. State,*50 Ala.App. 543, 280 So.2d 804.

For the error noted the case is reversed and remanded for a new trial.

There are other matters raised on this appeal but we will forego treating them as they will not likely arise upon another trial.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents with an opinion.

DeCARLO, Judge

(dissents).

In deference to an excellent opinion written by my learned brother, I would respectfully suggest that this case be affirmed and the cause remanded for proper sentence.

From the opinion, we see that the jury returned a general verdict and under *Winn v. State,*38 Ala.App. 156, 79 So.2d 75, this court could affirm and remand for proper sentence.

Under T. 15, § 336, Code of Alabama 1940 (Recompiled 1958), the trial court had authority after a general verdict to pronounce punishment but not a fine. Here the judge assessed a fine which was transposed into comparable time when the fine could not be paid.

The facts in *Winn, supra,*are somewhat similar to the ones outlined here. In *Winn*we have a conviction for gaming on Sunday. There the jury returned a general verdict of guilt and the judge imposed a fine of $10.

Judge Price wrote, as my brother has written here, that the court was without authority to assess a fine but determined the case should be affirmed and the cause remanded for proper sentence.

Mindful of the danger that this meager effort may be understood to be presumptuous, I urge my brothers to affirm and remand for proper sentence.

*264In view of the foregoing, I respectfully dissent.