State v. Deleo
| Decision Date | 20 June 1924 |
| Docket Number | 26589 |
| Citation | 156 La. 672,101 So. 17 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. DELEO |
Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.
Pete Deleo was convicted of possessing intoxicating liquor, and he appeals.
Conviction affirmed, sentence set aside, and cause remanded.
Ponder & Ponder, of Amite, for appellant.
Percy Saint, Atty. Gen., and M. J. Allen, Dist. Atty., of Amite (Percy T. Ogden, of Crowley, and M. M. Irwin, of New Orleans of counsel), for the State.
ROGERS J. O'NIELL C. J.
Defendant was prosecuted under a bill of information charging him with the possession of intoxicating liquors for beverage purposes. He was found guilty as charged and sentenced to pay a fine of $ 750 and the cost of prosecution, and to be imprisoned in the parish jail for a term of 90 days, and, in default of payment of the fine and costs, to imprisonment in the parish jail for a term of 2 years. This appeal is from said conviction and sentence.
Defendant has not supported his appeal by argument or by brief. The record contains only a motion and order of appeal based solely on the ground that the verdict was contrary to law and the evidence. There is no motion to quash, no motion in arrest, no motion for a new trial, no bill of exception, and no assignment of errors.
In these circumstances, and if there be no error patent on the face of the record, this court must affirm the judgment. State v. Maniacol, 153 La. 1053, 97 So. 37.
We do not find any error in so far as the conviction is concerned, but we are of the opinion that the court below exceeded its powers in imposing upon defendant a term of 2 years' imprisonment in default of payment of the fine and costs.
Act No. 39 of 1921 (Ex. Sess.) has expressly provided (in section 3) the penalty to be imposed for violations of its provisions. The penaltyset forth for the second or subsequent offense is a fine of not less than $ 100 nor more than $ 1,000, and imprisonment of not less than 30 days and not more than 12 months.
The authority of the judge to impose imprisonment in default of payment of the fine and costs was derived from section 980 of the Revised Statutes. Under the terms of the statute the alternative sentence of imprisonment is limited to a period not exceeding one year.
Where upon the face of the record it appears that a sentence has been imposed which is...
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