State v. Smith

42 So. 791, 118 La. 248, 1907 La. LEXIS 701

• Court: Supreme Court of Louisiana
• Decided: January 7, 1907
• Docket: No. 16,355
• Status: Published

Opinions

BREAUX, C. J.

An indictment was found by the grand jury against the defendant, charging him with carrying a dangerous weapon concealed on or about his person at church, where there was an assembly of the people.

The indictment was presented to the court and filed October 1, 1906. In it, it was alleged that the offense was committed on June. :3, 1906. The last law upon the subject of •concealed weapons is dated June 29, 1906.

Defendant pleaded guilty, and was sentenced to imprisonment for three months and to pay a fine of $301 and cost of the prosecution, and in default of payment of the fine to remain in the parish prison an additional three months.

Motion to Dismiss.

The state, through the Attorney General, ■moved to dismiss the appeal on the ground that the court is without jurisdiction; that, .as the penalty was over and above that fixed by the statute, it did not fall within the appellate jurisdiction of this court.

We do not find it possible to agree with that view. The sentence gives rise to a •question of law which can be determined on .appeal.

The illegal sentence can be annulled.

If a sentence of $301 be imposed, although the maximum penalty is $300, the court has jurisdiction to determine that the sentence is illegal.