We note that in the above opinion we failed to respond to appellant's contention that the lower court erred in refusing his motion for a new trial. We are unwilling to say that the lower court erred in its ruling in this premise. *Page 13
We further observe that part of the judgment of the lower court reads as follows:
"It is, therefore, considered by the Court and it is the judgment of the Court that the defendant be and he is hereby formally sentenced to hard labor for the use of Chilton County for a period of one year and that he pay a fine of $250.00.
"The defendant having failed to pay said fine or confess judgment therefor it is the order and judgment of the Court that said Defendant be sentenced to additional hard labor for Chilton County for a period of 90 days for the payment of the fine and 483 days for the payment of the Cost of these proceedings."
That part of the judgment above set out attempting to sentence the defendant to additional hard labor for 483 days for the payment of the cost is erroneous, in that under the provisions of Section 342, Title 15, Code of Alabama 1940, such additional hard labor to pay costs at the rate of 75¢ per day cannot exceed a period of ten months.
This cause must therefore be remanded for proper sentence in accordance with what has been said above.
Appellant's application for rehearing and motion that the opinion heretofore rendered be reversed and held for naught is denied, but this cause is hereby remanded for proper sentence in accordance with the terms of Section 342, supra.
Application denied, but cause remanded for proper sentence.
BRICKEN, Presiding Judge, not sitting.