delivered the opinion of the court.
The plaintiff in error, being a justice of the peace in and for the County of Covington, was indicted and convicted of being drunk while in office, under and by virtue of the provisions of acts of 1873, p. 84, punishing drunkenness in office.
After conviction he moved in arrest of judgment, on the ground that his term of office had expired, as was apparent from the record, because, the indictment alleging that he was a justice of the peace on 1st of August, 1875, the court was bound to take judicial cognizance of the fact that the terms of all justices then in office terminated on 1st of January, 1876, according to the Constitution and laws of the State, and the conviction had been had in November, 1876.
The court overruled the motion, sentenced the accused to removal from office, and taxed him with the costs. This was erroneous: the only penalty for his offence prescribed by the statute was removal from office. It was here apparent, from the record and the public law, that his term had expired before conviction.
It was impossible, therefore, to make effective the only penalty prescribed by law. There is no inhibition in the statute against holding office thereafter. It is said that the question of costs was involved, and that the State had the right to inflict these upon him. We think not. She had lost this by the failure to convict during his term. It is as if the party had died pending trial; or like the case where a penal statute is repealed after indictment and before conviction. It is evident that in such case no judgment can be pronounced.
Judgment reversed and ease dismissed.