Opinion
No. 26145.
October 22, 1923. On the Merits, November 12, 1923. On Rehearing, May 14, 1924.
Appeal from Twenty-Fifth Judicial District Court, Parish of Livingston; Robert S. Ellis, Judge.
Wilburn Cook and others were convicted of manufacturing intoxicating liquor for beverage purposes, and they appeal. Affirmed.
Rehearing by WHOLE COURT; O'NIELL, C.J., and ROGERS and BRUNOT, JJ., dissenting.
W.B. Kemp, of Amite, for appellants.
A.V. Coco, Atty. Gen., and M.J. Allen, Dist. Atty., of Amite (A.J. Bordelon, of Marksville, and T.S. Walmsley, of New Orleans, of counsel), for the State.
By Division A, composed of O'NIELL, C.J., and ROGERS and BRUNOT, JJ.
By Division A, composed of O'NIELL, C.J., and ROGERS and BRUNOT, JJ.
On Motion to Dismiss Appeal.
Appellant was convicted of manufacturing intoxicating liquor for beverage purposes and was sentenced to pay a fine and be imprisoned.
The state has moved to dismiss the appeal on the ground that there is not a bill of exception in the record or an error in the proceedings. If we do not find any error in the proceedings, when the case has been finally submitted, we will not dismiss the appeal, but will affirm the verdict and sentence. We cannot dismiss the appeal on the ground that there is no apparent error in the proceedings, without thereby giving judgment on the validity of the proceedings. State v. Durane, 153 La. 1021, 97 So. 26.
The motion to dismiss the appeal is overruled.
On the Merits.
As we said in passing upon the motion to dismiss this appeal, there was no bill of exception taken to any ruling of the district judge. We have examined the record and do not find any error in the proceedings, except as to the sentence.
Appellant was sentenced, for the offense of manufacturing intoxicating liquor for beverage purposes, to pay a fine of $500 and costs, and to be imprisoned 60 days, and, in default of payment of the fine, to be imprisoned one year longer.
The fine of $500 and imprisonment for 60 days was the maximum sentence that could be imposed under the statute. Act 39 of 1921, p. 42.
For the reasons given in the case of State v. Doras Hebert (No. 26165) 103 So. 742, decided to-day, the additional sentence of imprisonment for one year in default of payment of the fine is invalid.
Ante, p. 209.
The verdict appealed from is affirmed; the sentence to pay a fine of $500 and costs, and to be imprisoned 60 days, is affirmed; the additional sentence of imprisonment for one year in default of payment of the fine is annulled.
On Rehearing.
By the WHOLE COURT.
A rehearing was granted in this case upon the point alone decided in State v. Doras Hebert (No. 26165) 103 So. 742, on the 11th day of April, 1924; that is, as to the right of the lower court to impose an alternative jail sentence under section 980 of the R.S., for failure to pay the fine imposed under Act 39 of Ex. Sess. 1921 known as the Hood Bill.
Ante, p. 209.
For the reasons assigned in the Hebert Case on rehearing, the judgment and sentence are affirmed.
O'NIELL, C.J., and ROGERS and BRUNOT, JJ., dissent.