Opinion
No. 38898.
April 26, 1948. Rehearing Denied June 1, 1948.
Leonard Rachal was convicted on four charges, one with possession of and three with selling intoxicating liquors in a parish where possession and sale of such liquors is prohibited. On application for writ of habeas corpus to obtain relief from jail sentence.
Writ denied.
S. R. Thomas, of Natchitoches, for relator.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and H. L. Hughes, Dist. Atty., of Natchitoches, for respondent.
O'NIELL, C. J., dissenting.
The relator, Leonard Rachal, having pleaded guilty on four charges (one with possession of and three with selling intoxicating liquors in a parish where possession and sale of such liquors is prohibited), in violation of Act No. 15 of 1934, as amended, was sentenced in each case to serve six months and to pay a fine of $500 (the sentences to run concurrently), in default of paying the fine, to serve an additional six months. He paid the fine and is now seeking to be relieved of the jail sentence, contending that the statute under which he was charged does not authorize the imposition of both a jail sentence and fine, citing as authority the case of State v. Monsour, 205 La. 272, 17 So.2d 307.
The trial judge in the return to the rule issued by this court informs us that in imposing these sentences he took into consideration the fact that the accused had been previously convicted on a similar charge, his conviction being later affirmed by this court in the case of State v. Rachal, 211 La. 227, 29 So.2d 774, and that the accused and his counsel were so advised in open court before the sentence was imposed.
It is obvious, therefore, that the holding in the Monsour case has no application here for the act under which the accused was prosecuted specifically provides that "For a second or subsequent offense, the said penalties may be doubled, the imposition of fine and imprisonment and the doubling of said penalties to be within the discretion of the Court." Section 13. (Italics ours.)
For the reasons assigned the writ issued herein is recalled and the relief sought is denied.
O'NIELL, C. J., dissents on the ground that there was no proof made in this case of the former conviction in the district court.