109 So. 455 | Fla. | 1926
In proceedings on writ of habeas corpus issued by the Circuit Judge, it appears that petitioner was in the county court for Lee county charged with "unlawfully" having in his "possession, custody and control approximately three gallons, one hundred thirty-four quarts and one hundred five pints of alcoholic and intoxicating liquors for the purpose of illegal sale." The jury found the defendant "guilty of having in his possession for the purpose of illegal sale, a quantity of alcoholic or intoxicating liquor, as charged in the information." The sentence was:
"You having been tried and convicted of the crime of *413 unlawfully having in your possession intoxicating liquors for illegal sale, the court adjudges you to be guilty."
"It is the judgment of the court and the sentence of the law, that you, Leo Orme, alias LeRoy Orme, do be confined in the County Jail of Lee County, Florida, for the term or period of six months, and that you do forfeit and pay to the State of Florida, for the use and benefit of Lee County, a fine of $300.00 and the cost of this prosecution, and in default thereof to be confined in said County Jail for an additional six months, to begin and run after the expiration of the former sentence herein imposed."
The petitioner was discharged and the officer was allowed a writ of error under the statute. Sec. 3580, Rev. Gen. Stats., 1920.
The allegation in the information and the finding in the verdict that the alleged possession by the defendant of intoxicating liquors was "for illegal sale" may be treated as surplusage or as showing a possession forbidden by Section 5460, R. G. S. But it seems from the sentence in using the expression "for illegal sale" that the sentence was imposed under Chapter 9266, Acts of 1923, which has been held to be inoperative (Duke Porter v. State, ___ Fla. ___, ___ South. Rep. ___), while a proper sentence should have been imposed under Sections 5486, 6115 Rev. Gen. Stats. 1920.
In the Duke Porter case the court on certiorari quashed the sentence because it stated it was imposed "because by Acts of 1923, imprisonment is required."
Reversed, with directions to remand the petitioner for a proper sentence. Ex parte Simmons,
*414It is so ordered.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.
BROWN, C. J., AND ELLIS AND STRUM, J. J., concur in the opinion.
