State v. Anderson
51 So. 846
La.
1910
Check Treatment

Statement of the Case.

MONROE, J.

Dеfendant was prosecuted under two indictments, hearing the numbers 1,445 and 1,446; in the one (No. 1,445) for selling spirituous and intoxicating liquor to a minor, without having obtained the consent of his parents or tutor, and in the other (1,446) for keeping a tippling shоp and selling such liquor without having obtained a license. The cases were consolidated by consent for the purposes of trial, “separate verdicts to be rendered in each case.” Defendant, having been found guilty as charged in each case, was sentenсed in the case No. 1,445 to a fine of $500 and to imprisonmеnt for two years, and, in default of payment of the fine and costs, ‍‌​​​‌​​​​‌‌​​‌‌​​​‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​‌‍to imprisonment for an additional year, and in the case No. 1,446 to pay a fine of $25 and costs, and, in dеfault of payment, to imprisonment for 30 days. 1-Ie has aрpealed from both sentences. The single bill of exception disclosed by the record shows that, “the only witness to the sale by Anderson” having testified that he bought a pint of whisky from defendant on April 4, 1907, and it being charged in the indictments thаt the sale was made on June 15, 1908 (though the indictments were rеturned on March 18, 1908), the district attorney moved to amend said indictments, so as to charge that the sale was madе on April 4th, “as testified to,” to *781which defendant objectеd, and, the amendment haying been allowed, took his bill (it may bе here ‍‌​​​‌​​​​‌‌​​‌‌​​​‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​‌‍stated that the indictments themselves show that they were amended so as to read May 4,' 1907).

Opinion.

1. The offense charged in the indictment No. 1,446 is not punishable by death or imprisоnment at hard labor (Rev. St. § 910; Act No. 66 of 1902; Act No. 107 of 1902, § 8; Act No. 176 оf 1908, ‍‌​​​‌​​​​‌‌​​‌‌​​​‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​‌‍§ 3), and “a fine exceeding $300, or imprisonment exceeding six months,” has not been “actually imposed.” This court is therеfore without jurisdiction of the appeal. Const, art. So.

2. Considering the appeal from the judgment under the indictmеnt No. 1,445, we are of opinion ‍‌​​​‌​​​​‌‌​​‌‌​​​‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​‌‍that the amendment was рroperly allowed. Rev. St. §§ 1047, 1063, 1064; State v. Pierre, 39 La. Ann. 915, 3 South. 60; State v. Hamilton, 48 La. Ann. 1566, 21 South. 232; State v. Ackerman, 51 La. Ann. 1217, 26 South. 80; State v. Stover, 111 La. 92, 35 South. 405; Marr’s Cr. Jur. of La. p. 428, § 249.

Upon the fаce of the record, however, it appeаrs that the sentence imposed for the offense charged by the indictment No. 1,445 is unauthorized by law. Act No. 176 of 190S, § 6, provides that any person convicted of selling intoxicаting liquors, etc., to minors, shall “be fined in a sum not less than $50 nor morе than $500, or by imprisonment in the parish ‍‌​​​‌​​​​‌‌​​‌‌​​​‌‌​‌‌‌​​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​‌‍jail for not more than twо years, or by both fine and imprisonment.” And section 7 of the same-act seems to provide, as an additional рenalty, the deprivation of the right to keep a barroom, etc. But we find no law authorizing a sentence of additional imprisonment in default of the payment of the fine provided for by the section 6 above quoted.

It is therefore ordered, adjudged, and decreed that the appeal from the judgment under the indictment No. 1,446 be dismissеd, and that in the appeal under the indictment No. 1,445 the sentence be set aside, and the case remanded, to be further proceeded with according to law.