GRAY v. STATE, 338 So.2d 444 (Ala.Crim.App. 1976)

338 So.2d 444

James GRAY, alias v. STATE.

3 Div. 427.Court of Criminal Appeals of Alabama.
August 24, 1976. Rehearing Denied November 5, 1976.

Appeal from the Circuit Court, Montgomery County, Frank B. Embry, Special Judge.

Page 445

George H.B. Mathews, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted in count one for burglary in the second degree, and for grand larceny in count two. A jury convicted on both counts. The trial court imposed separate sentences of five years on each count.

It appears that the same transaction supports both grand larceny and burglary, but there can be but one punishment. Whether this rule is served by a single sentence or concurrent sentences is a matter confided to the judge’s discretion. T. 15, § 287, Code of Alabama 1940, Recompiled 1958; Wade v. State, 42 Ala. App. 400, 166 So.2d 739 (2); Lawson v. State, 33 Ala. App. 333, 33 So.2d 405 (1, 2); Wildman v. State, 42 Ala. App. 357, 165 So.2d 396, cert. den. 276 Ala. 708, 165 So.2d 403.

The judgment is affirmed but the cause is remanded for imposition of appropriate sentence in accordance with this opinion.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED. CAUSE REMANDED FOR PROPER SENTENCING.

All the Judges concur.