Dissenting Opinion by
Montgomery, J.:The appellant, George Moses, and Michael Apecella, were indicted for selling liquor, etc., after 2:00 a.m. on a Sunday and prior to 7:00 a.m. on the Monday following. The indictment makes no reference to prior offenses, although the information on which it was predicated charged the appellant with two prior convictions for liquor law violations.
Apecella entered a plea of guilty but appellant pleaded not guilty and was found guilty by a jury. His motion for a new trial and in arrest of judgment having been overruled, he was sentenced to pay a fine of $300 and the costs of prosecution and to undergo imprisonment in the Lawrence County jail for a period of not less than six months nor more than twelve months. This appeal followed.
I see no merit in appellant’s contention that the evidence is insufficient to sustain his conviction. However, I must dissent from the majority’s action in affirming the sentence since, in my opinion, it is illegal.
The sentence imposed on appellant is that prescribed for a second offender under the Liquor Code, Act of April 12, 1951, P. L. 90, art. IY, §494, 47 P.S. §4-494, the limit of the penalty for a first offender being a fine of not less than $100 or more than $500, and imprisonment only “on failure to pay such fine” for not less than one month, nor more than three months.
On the authority of Commonwealth v. Koczwara, 188 Pa. Superior Ct. 153, 146 A. 2d 306 (1958), aff’d, 397 Pa. 575, 155 A. 2d 825 (1959), it is clear that in such cases the indictment must contain an averment of *285prior conviction and sentence to sustain a conviction for additional offenses. Since this indictment did not contain such an averment, appellant was convicted merely as a first offender and should have been sentenced as such.
I would vacate the judgment of sentence and remand the case to the lower court for resentencing in accordance with the law.
Therefore, I dissent.