Salazar v. United States
| Decision Date | 13 October 1916 |
| Docket Number | 4643. |
| Parties | SALAZAR v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. C Catron, of Santa Fe, N.M., for plaintiff in error.
Summers Burkhart, U.S. Atty., of Albuquerque, N.M.
Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURGH District Judge.
The plaintiff in error was convicted of selling intoxicating liquor to an Indian who was a ward of the United States under the charge of an Indian superintendent or agent. The prosecution was brought under the act of Congress of July 23 1892 (27 Statutes at Large, 260), as amended by the act of January 30, 1897 (29 Statutes at Large, 506). Morgan v Ward et al., 224 F. 698, 140 C.C.A. 238; United States v. Wright, 229 U.S. 230, 231, 33 Sup.Ct. 630, 57 L.Ed. 1160. Under these statutes the maximum penalty for the offense charged is imprisonment for not more than two years and a fine of not more than $300. The minimum punishment is imprisonment for not less than 60 days and a fine of not less than $100 for the first offense, and not less than $200 for each offense thereafter. It is further provided that the person convicted shall be committed until fine and costs are paid. The sentence in this case was imprisonment in the United States jail, located at the New Mexico state penitentiary at Santa Fe, N.M., for a period of six months, and a fine of $500 with costs.
The only error urged in this court is that the punishment was excessive, in that the fine imposed exceeds, by $200, the maximum provided by law in such cases. It is contended on behalf of plaintiff in error that the sentence is therefore void, or at the very least that the case must be remanded to the District Court for resentence within the limits prescribed by statute. Under the decided cases the determination of the question presented is not attended with difficulty. Where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of that which the law permits does not render void the legal or authorized portion of that sentence. United States v. Pridgeon, 153 U.S. 48, 62, 14 Sup.Ct. 746, 38 L.Ed. 631; In re Coy, 127 U.S. 731, 757, 8 Sup.Ct. 1263, 32 L.Ed. 274.
'Where error is discovered in the proceedings in a criminal case properly presented to a Circuit Court of Appeals for review it is empowered to enter such judgment and to impose such sentence as the law...
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