65 F.2d 790 | 5th Cir. | 1933
This is an appeal by the warden of the Atlanta penitentiary from an order granting the writ of habeas corpus and discharging William E. Pace, a prisoner, from custody. On his plea of guilty to an indictment which charged him with unlawfully selling on January 11, 1932, “intoxicating liquor, to-wit whiskey,” but without alleging the quantity sold, Pace was sentenced to imprisonment in the penitentiary for the period of one year and a day. After serving more than six months, he sued out a writ of habeas corpus/ contending that the sentence in excess of six months was void, as it was held to be by the District Judge.
We think the decision was correct. Under the National Prohibition Act (title 2, § 29), the maximum imprisonment authorized for the first offense of selling was six months. 27 USCA § 46. By the Jones Act of March 2, 1929, it was increased to five years regardless of quantity, 45 Stat. 1446; but by the amendment of January 15, 1931, 46 Stat. 1036, the maximum punishment originally provided for a first offense in the event of a sale of not more than one gallon was restored, and was in force in 1932 when Pace made the sale on account of which he was indicted. 27 USCA § 91. Before the amendment of 1931, the severity of the sentence did not necessarily depend on the quantity of liquor sold, and it was therefore held that the quantity need not be alleged in the indictment. Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407. But since the adoption of that amendment the quantity alleged to have been sold becomes of vital importance-to. the defendant. If he sells a gallon or less, he has committed a misdemeanor and cannot be punished by imprisonment exceeding six months
The order appealed from is affirmed.
