Doran v. State ( 1932 )

Per Curiam.

This is a writ of error to the district court for Lancaster county. The plaintiff in error, George Doran, hereafter called the defendant, was convicted of a first violation of the liquor law, and was sentenced to pay a fine of $100 and serve 60 days in the county jail.

The offense on which defendant was tried and convicted is described in the charging part of the complaint as follows: “George Doran on or about the 16th day of April, 1931, * * * did * * * unlawfully and wilfully have intoxicating liquor in his possession with intent to sell or dispose of the same.” This language clearly, directly and unambiguously charges the offense of unlawful possession of intoxicating liquor, as defined and described in section 53-111, Comp. St. 1929. For this offense the authorized punishment is a fine of $100 or imprisonment in the county jail not less than 30 nor more than 60 days. Comp. St. 1929, sec. 53-151.

It being clear that the error in the sentence is the only error upon which this case should be reversed, however, there is ample authority for remanding the case for a re-sentence of the prisoner in accordance with section 53-151, Comp. St. 1929.

This court held in Knothe v. State, 115 Neb. 119, that the attempt to impose both a fine and a sentence in excess of its powers renders such sentence wholly void, and that a void sentence is no sentence.

The judgment of the district court is therefore reversed and the cause remanded to the district court, with instructions to pronounce sentence in accordance with the law.

Reversed.