140 P. 670 | Utah | 1914
The appellant was charged with and convicted of a felony, and sentenced to imprisonment in the Utah State Prison, from which sentence he appeals.
“Every person who sells, exchanges, gives, barters, or disposes of any intoxicating drink to any Indian of the .half or whole blood, or to any person living or cohabiting with an Indian woman, shall be guilty of a felony,” etc. (Italics ours.)
It will be noticed that appellant is not charged with having offended against that part of the statute which is italicized.
In 1911 the legislature of this state repealed title 39, which consisted of sections 1242 to 1260x1 inclusive, of the Compiled Laws of 1907, and which title constituted all the laws in force in this state relative to the regulation of the traffic in intoxicating liquors except section 4298, which we have quoted. In lieu of title 39 aforesaid the legislature, at the time of its repeal, enacted chapter 106, Laws of Utah 1911, p. 152. In adopting that chapter, the legislature inserted therein a certain provision which was omitted from title 39 aforesaid, and which constitutes section 30 of said chapter, and which provides for the punishment of any person who sells or gives any intoxicating liquor to any Indian except as in that section provided. That section, so far as material here, reads as follows:
“No intoxicating liquor shall be sold to, procured for, or delivered to an Indian, . . . either for his own use or for the use of any person, except for medicinal purposes upon the prescription of a physician.”
We have a statute, however (Comp. Laws 1901, section 4488), which provides:
“An act or omission which is made,punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one.”
“The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all the proceedings, subsequent to or dependent upon such judgment' or order, and may, if proper, order a new trial.”.
The powers exercised by appellate courts under such or similar provisions are clearly stated in 12 Cyc. 937, 938, in the following words:
“In the absence of a statute permitting this to he done, the appellate court has no power to amend or correct the judgment. According to the modern practice, however, and under recent statutes, the appellate court may reform and correct defects in the judgment appealed from and affirm it as thus corrected.
“The appellate court in affirming a conviction may modify the punishment imposed by the trial court by mitigating, reducing, or otherwise changing it so far as it exceeds the limits prescribed by the statute. This rule applies to a fine or a sentence to a term of imprisonment in excess of that permitted by statute; to a fine rendered against defendants jointly; to a sentence on a general verdict, of guilty, where one of several counts is unsustained by any evidence; and to a premature sentence.”
For the reasons hereinbefore stated, the verdict of the jury must therefore be, and the same is, in all respects held legal and just. The sentence, however, which was imposed by the district court of Wasatch County is set aside and annulled, and the case is remanded to that court, with directions to require the appellant to appear before it and to impose a sentence upon him as provided by section 65 of chapter 106, Laws Utah 1911, and to enforce such sentence; No costs are to be taxed against the appellant either in this or in the district court.