Tbe appellant was indicted in the city court of Mobile for tbe crime of rape.
On tbe trial, the jury returned a verdict in the following words, to-wit: “We, the jurj, find the prisoner guilty, as charged in tbe indictment, and sentence him to imprisonment in the penitentiary.”
Before he was sentenced by tbe court, tbe prisoner, by bis counsel, moved to arrest tbe judgment, for tbe following reasons:
1st, “ Because tbe verdict, rendered in the case by the jury, is contrary to law, and does not declare what the punishment shall be.”
2d. “ Because the court can not pass sentence upon tbe verdict rendered in tbe case, the court having no power or discretion to fix tbe length of time of imprisonment, and tbe jury having failed to fix tbe same, it being their province so to do.”
The court overruled the motion, and sentenced tbe prisoner to bard labor in tbe penitentiary for tbe term of his natural life. The prisoner excepted to the ruling and sentence of tbe court; the judgment of tbe court was suspended, and tbe case is here for revision.
The prisoner is unrepresented in this court, and, consequently, no errors are assigned. By section 4314 of the Revised Code, no assignment of errors is necessary, but tbe court is required, without any assignment of errors, to render such judgment on the record as the law demands.
Section 3661 of tbe Code provides, that “ any person who. is guilty of the crime of rape, must, on conviction, be punished, at the discretion of the jury, either with death, or by imprisonment in the penitentiary for life, or by bard labor for tbe county for life.”
The entire punishment for this crime, is in tbe discretion of the jury, and the court has nothing to do in the matter, but to' pronounce the sentence of the jury.
The attorney-general argues that the law determines the duration of the punishment, where it is either in tbe penitentiary, or bard labor in tbe county. This is true, but, *321notwithstanding, it must be found by the jury, and not fixed by the court.
Who can cell, but if the jury had been instructed, that imprisonment in the penitentiary must be for life, they might not have determined to inflict the milder punishment, to-wit, hard labor for the county for life? But why speculate about this matter ? The wiser and safer course is, to do just what the law requires, and to do it in the way the law requires. We have determined at this term, in the case of Edgar v. The State, a case very like this; that the jury must, by their verdict, determine both the character and the extent of the punishment.
Let the judgment of the court below be reversed, and the cause be remanded for a new trial, and the prisoner be retained in custody until discharged by due course of law.