Nichols v. State

• Decision Date: 02 December 1896
• Docket Number: 8447
• Citation: 69 N.W. 99,49 Neb. 777
• Parties: JOHN NICHOLS v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

69 N.W. 99

49 Neb. 777

JOHN NICHOLS v. STATE OF NEBRASKA

No. 8447

Supreme Court of Nebraska

December 2, 1896

ERROR to the district court for Burt county. Tried below before KEYSOR, J.

AFFIRMED.

H. Wade Gillis and C. A. Baldwin, for plaintiff in error.

A. S Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state.

OPINION

NORVAL, J.

This was a prosecution for selling intoxicating liquors without a license. The information contained three separate counts, and upon the trial the jury found the defendant guilty as charged in each count, and the court imposed as sentence upon the accused a fine of $ 300 for each offense, or count, set out in the information, and to pay the costs of prosecution. The defendant has brought the record to this court for review.

But a single point is relied upon for reversal which we shall now consider, viz. that the fines assessed exceed the limit fixed by law. The information was framed under section 11, chapter 50, Compiled Statutes, 1895, which declares that "all persons who shall sell, or give away upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks, without having first complied with the provisions of this act, and obtained a license as herein set forth, shall for each offense be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or be imprisoned not to exceed one month in the county jail, and shall be liable in all respects to the public and to individuals, the same as he would have been had he given bonds and obtained license as herein provided," etc. This court has held, and we think rightly, that the foregoing statute makes each and every act of selling or giving away of any of the liquors therein named, without license so to do, a misdemeanor. (State v. Pischel, 16 Neb. 490, 20 N.W. 848; Smith v. State, 32 Neb. 105, 48 N.W. 823.) The information charges the defendant with the commission of three several and distinct misdemeanors, and the offenses being of the same general character, they were properly joined in the same information. (Burrell v. State, 25 Neb. 581, 41 N.W. 399; Martin v. State, 30 Neb. 507, 46 N.W. 621.) It is the settled doctrine in this state that in prosecutions for misdemeanors, a separate sentence should be imposed on each count of the information or indictment upon which the accused has been convicted. (Burrell v. State, supra; Martin v. State, supra.) And where more than one sentence of imprisonment is passed, the judgment should not fix the day on which each successive term of imprisonment should be given, but should direct that each successive term should commence at the expiration of the one imposed by the previous sentence. (In re Walsh, 37 Neb. 454, 55 N.W. 1075.) In the case at bar, as already stated, a separate fine of $ 300 was adjudged against the defendant under each count of the information, which was less than the maximum sum fixed by the...