73 So. 246 | La. | 1916
In this case both the state and the accused, have appealed.
The act authorizing the suspension of sentences (Act 74 of 1914, § 7) reads:
“That when there is a conviction of a misdemeanor in any court in this state, the judge may suspend sentence if he shall find that the defendant has never before been convicted of any felony or misdemeanor. The court shall permit testimony as to the general reputation of the defendant, and as to whether the defendant has been convicted of a misdemeanor or felony, but such testimony shall be submitted only upon the request of the defendant. * * * ”
The contention of the state must be sustained. The court is allowed by this act to suspend a sentence only after testimony has been heard.
“The indictment does not set out any facts charging an offense under the laws of the state.”
Act No. 8 of the Extra Session of 1915 makes it an offense to keep a blind tiger, and defines a blind tiger as follows:
“That a ‘blind tiger’ is hereby defined to be any place in those subdivisions of the state where the sale of spirituous, malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are kept for sale, barter, or exchange or habitual giving away.”
The indictment in this ease reads:
“That on the 25th day of February, 1916, the defendant did willfully and unlawfully, in a certain room or place in the Robinson Building, in the town of Bernice, parish of Union, where the sale of liquor is prohibited by law, keep and have intoxicating liquor for sale, barter, exchange, and habitual giving away; and therefore he, said D. B. Garland, did then and there keep a blind tiger.”
We do not see in what respect this indictment fails to charge the offense denounced by this statute. It practically does so in the very words of the statute.
The next complaint is that over objection the state was allowed “to show that other business was conducted on the premises in question.” What was the ground of the objection, and wherein this further showing could have prejudiced the case, the bill does not show, and we are at a loss to conceive.
Nor can the ground for new trial that the judgment is contrary to the law and the evidence.
The judgment appealed from is annulled, in so far as it suspends the sentence of imprisonment against the accused, and is otherwise affirmed.