* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 620, n. 63, 64, 65; Intoxicating Liquors, 33CJ, p. 796, n. 37; p. 797, n. 39. The appellant was convicted on an indictment charging him with unlawfully having in his possession more than one quart of intoxicating liquor, and was sentenced to pay a fine of five hundred dollars and to serve a term of three months in the county jail. From this judgment, he prosecutes an appeal.
Upon examination, we find no error in this record. The peremptory instruction for the defendant was properly refused. We think the prosecuting attorney had the right to introduce the keg of whisky in evidence and to exhibit a glass of whisky drawn from such keg.
There is no merit in the application for a continuance of the cause; and this case should be affirmed but for the sentence imposed by the court. The attorney-general *Page 31 calls our attention to the excessive sentence imposed by the court below and to the fact that sentence should have been imposed under section 17, chapter 189, Laws of 1918.
In the case of Mike Buford v. State (No. 25764),111 So. 850, the opinion in which was handed down on February 21, 1927, we held that section 2, chapter 210 of the Laws of 1922, was void in that such section violated section 61 of our Constitution. On the same day, in the case of T. Bell Holmes v. State (No. 25766), 111 So. 860, the court also held that section 1, chapter 210, Laws of 1922, was void for the reason set forth in theBuford case, supra; and both cases were remanded for proper sentence and are controlling in this case. Under the law as it now stands in the light of these opinions, the court has not the power to impose ninety days' imprisonment in jail as punishment for having in possession more than one quart of whisky. Therefore this cause is affirmed in all respects except as to the sentence.
Affirmed, except as to sentence; reversed and remanded for proper sentence.
Affirmed. Reversed and remanded.