
    The State v. Sands, Appellant.
    
    Criminal Law: instructions. An instruction over-stated the maximum fine and omitted to state the minimum term of imprisonment for defendant’s offense. The punishment assessed by the jury was within the limit prescribed by law both as to fine and imprisonment. Held, nevertheless, that for the error in the instruction the judgment of conviction must be reversed.
    
      Appeal from Johnson Circuit Court. — The case was tried before A. S. Rodgers, Esq., sitting as Special Judge.
    Reversed.
    
      
      Levin H. Campbell and Samuel P. Sparks for appellant.
    D. H. McIntyre, Attorney General, for the State.
   Norton, J.

Defendant; at the December term, 1879, of the Johnson county criminal court, was tried upon an indictment charging him with abandoning and failing to provide for and maintain his wife from the 18th day of July to the 16th day of December, 1878. He was convicted and his punishment assessed at a fine of $325 and imprisonment in the county jail for 143 days.

The indictment is based on the 34th section, 1 Wagner’s Statutes, 497, which provides that “ every husband shall be deemed guilty of misdemeanor, who shall, without good cause, abandon his wife, and fail, neglect or refuse to maintain and provide for her.” The punishment on conviction for such offense under the law in force at the time the indictment was found, was by fine not less than $50 nor more than $500, or by imprisonment in the county jail or workhouse not less than one month nor more than twelve months, or by both such fine and imprisonment.

The court erred in the first instruction given on behalf of the State in this, that the jury was directed to assess the punishment “ at imprisonment in the county jail not more than one year, or by a fine of not less than $50 nor more than $1,000, or by both such fine and imprisonment.” It will be observed that in the same instruction as to the punishment by imprisonment the minimum prescribed by the statute as a basis in fixing the punishment was wholly ignored, and the maximum of the fine was greater than that allowed by law. Judgment reversed and cause remanded in which all concur.  