State v. Mitchell

69 So. 851, 137 La. 1098, 1915 La. LEXIS 1799

Opinion

SOMMERVILLE, J.

The defendant was sentenced to imprisonment in the parish jail for 6 months, and to pay a fine of $300 and costs, and, in default of paying the fine and costs, to additional imprisonment in the parish jail for a period of 12 months, subject to working the sentence out according to the ordinance of the policy jury.

The state moves to dismiss the appeal on the ground that this court is without jurisdiction.

[1, 2] Article 85 of the Constitution provides that the Supreme Court, in criminal cases, shall have appellate jurisdiction on questions of law alone, whenever the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding $300, or imprisonment exceeding 6 months, is “actually” imposed.

The offense charged, that of retailing intoxicating liquors without first having obtained a license, is not punishable by death, or by imprisonment at hard labor, and the fine imposed on defendant does not exceed $300, and the imprisonment “actually” imposed does not exceed 6 months. The additional imprisonment in the parish jail for a period of 12 months in default of paying the fine of $300 is not a term of imprisonment “actually” imposed. State v. Hamilton, 128 La. 91, 54 South. 482.

The appeal is dismissed.

See dissenting opinion of O’NIELL, J., 69 South. 852.