The only point raised by defendant in his application for rehearing is that he was not sentenced according to law and that the sentence imposed upon him is illegal. And the rehearing was granted for the sole purpose of reviewing and passing upon that point.
Defendant was prosecuted under Act 15, Regular Session of 1934, for possessing, offering, and keeping for sale intoxicating liquors for beverage purposes in a parish where the sale of intoxicating liquors is prohibited by law. He was convicted and sentenced to serve 60 days in the parish jail, subject to road duty, and to pay a fine of $301 and costs of prosecution, and, in default of the payment of the fine and the costs, to serve an additional period of five months in the parish jail, subject to road duty.
The penalty prescribed by Section 13, Act 15, Regular Session of 1934, as amended by Act 202 of 1940, p. 858, for an offense of this kind is a "fine of not less than One Hundred ($100.00) Dollars nor more than Five Hundred ($500.00) Dollars, or imprisonment of not less than thirty (30) days nor more than six (6) months"; and, on failure to pay such fine, the defendant shall be imprisoned for not more than six months. (Italics are the writer's.)
The statute does not authorize the imposition of both a jail sentence and a fine. The penal clause is written in the disjunctive. It provides that the defendant may be fined or imprisoned. He may *Page 279 therefore be fined in a sum of not less than $100 nor more than $500, and the costs of prosecution, and, in default of the payment of the fine and the costs, may be imprisoned for a term of not more than six months. Or he may be imprisoned for not less than 30 days nor more than six months.
For the reasons assigned, the sentence imposed upon the defendant is set aside, and the case is remanded in order that he may be sentenced according to law.