
    (94 South. 370)
    No. 25353.
    STATE v. ROMERO.
    (Nov. 27, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    Criminal law <&wkey; 1040 — Complaint that verdict too defective to support sentence entertained on appeal, though not made below.
    Where the verdict is so defective that no sentence can be imposed, the complaint may be made in the Supreme Court on appeal, though not made below.
    Appeal from Criminal District Court, Parish of Orleans; Richard A. Dowling, Judge.
    Mike Romero was convicted of an offense, and he appeals.'
    Verdict and judgment set aside, and case, remanded.
    
      George Piazza, of New Orleans, for appellant.
    A. V. Coco, Atty. Gen., and R. H. Marr, Dist. Atty., of New Orleans (T. S. Walmsley, of New Orleans, of counsel), for the State.
    By the WHOLE COURT.
   PROVOSTX, C. J.

On an information in one count reading:

“Did in the nighttime, with the felonious intent to steal, feloniously break and enter the store of one A. M. Churchill contrary,” etc.,

and in another count reading:

“And at the time and place aforesaid, after the commission of the felony aforesaid, did feloniously steal, take, and carry away one typewriter valued at $60, of the goods and chattels of,” etc.,

the jury brought in a Verdict reading:

“Guilty of breaking in the nighttime with intent to steal, and petty larceny.”

In a supplemental brief the Attorney General and the district attorney say, “There is no doubt that the verdict herein rendered is defective, and is not one on which sentence may be imposed,” but they contend that the complaint made in this court of said defect by the accused cannot be entertained, because not made below, so as to afford the trial court an opportunity to rule upon it; that this court can act on appeal only upon the rulings of the trial court. Not so. State v. Hayes, 104 La. 461, 29 South. 22; State v. Kierson, 140 La. 31, 72 South. 799; State v. Griggsby, 117 La. 1046, 42 South. 497; State v. Nicolosi, 128 La. 836, 55 South. 475.

The verdict herein, upon which no sentence can be imposed, is set aside, as also the judgment herein, and the case is remanded for trial.

O’NIELL, J., being absent from the state, takes mo part in the decision of this case.  