¶1On Motion for Rehearing
¶2The State insists this case should not be reversed on account of the jury’s verdict imposing hard labor, but that such portion of the verdict should be treated as mere surplusage.
¶3The courts have often held that where the jury without authority fixes the hard labor sentence the court may proceed to fix the punishment and sentence, disregarding that portion of the verdict, and it will be presumed that the trial Judge was acting under his own power and authority in awarding the hard labor sentence.
¶4In this case it is manifest the court fixed the punishment under the jury’s verdict and we would not be warranted in indulging the presumption that the court was disregarding that part of the verdict and acting under his own authority.
¶5Application overruled.