183 Wis. 557 | Wis. | 1924
Defendant’s sentence of a year and six months in the state prison was for a present and prior violation of the state prohibition law, each instance being the unlawful possession of privately manufactured distilled liquor. The state prohibition law (ch. 165, sec. 165.01, Stats.), so far as material here, and where other specific penalty is not made, provides by sub. (32) thereof that for violation of its provisions a defendant shall, as an increased penalty for a subsequent -offense, be fined not less than $200 nor more than $2,000 and be imprisoned in the county jail not less than one month nor more than one year.. The severer and state prison sentence here imposed was upon the theory that such was authorized by sec. 4738, Stats. This is found in ch. 359, relating to judgments in criminal cases, and has been in substantially the same form since as early as 1878, and provides in effect that where it-is so al
On the hearing here the attorney general, representing the defendant in error, very frankly and in a commendable-attitude concedes that the state prison sentence under said sec. 4738 is not warranted.
Ch. 165, supra, the state prohibition law, has defined specific offenses and prescribed specific penalties. It needs no discussion or citation of authorities to arrive at the conclusion that under the situation here disclosed the specific rather than the general statute applies.
It follows therefrom that, the sentence being unwarranted, the judgment, so far as it inflicted the same, must be reversed and set aside.
By the Court. — Judgment reversed, and cause remanded with directions to the trial court to sentence the defendant under ch. 165.