
    (47 South. 605.)
    No. 17,296.
    STATE v. CIBILICH. In re CIBILICH et al.
    (Nov. 4, 1908.)
    Weights and Measures (§ 5*) — Statutes— Defenses.
    Acts 1008, p. 135, No. 92, § 1, providing a measure under penalty for the sale of oysters and for the importation of oysters in sacks, does not provide a measure for receiving, keeping, and having oysters in sacks, or subject a person to a penalty for keeping oysters in sacks not of standard measure.
    TEd. Note. — -For other cases, see Weights and Measures, Dee. Dig. § 5.*]
    Miho C. Cibilich was convicted of receiving and keeping oysters in sacks not of standard measure,' in violation of Acts 1908, p. 135, No. 92, § 1, and lie applies for certiorari and prohibition.
    Judgment set aside, and defendant released.
    John Dymond, Jr., for relator. Respondent Judge, pro se. Walter Guión, Atty. Gen. (E. Howard McOaleb and George Montgomery, of counsel), for respondent Oaruso.
   PROVO STY, J.

The defendant was tried on affidavit before the Second city criminal court, and was convicted. The judgment against him was affirmed on appeal to the criminal district court, and the case is before this court on writ of review.

The affidavit charges that he did “knowingly, willfully, and falsely, fraudulently, and deceitfully receive, keep, and have in his possession certain oysters contained in sacks, which said sacks were not of the standard measure, as provided in section 1 of Act No. 92 of 1908.”

To this affidavit the defendant demurred, as not charging any crime known to the law of Louisiana. Defendant also impugned the constitutionality of said Act No. 92, p. 134, of 1908, and, in fact, the validity of said act, even apart from any question of constitutionality, on various grounds.

We think the demurrer should have been sustained. Neither said Act No. 92, p. 134, of 1908, under which the affidavit purports to have been drawn, nor any other statute, makes it a crime to receive, keep, and have in one’s possession sacks of oysters of less measurement than of any specified standard. At most, said Act No. 92, p. 134, of 1908, provides a measure, under penalty, for the sale of oysters, and for the importation of oysters in sacks. It no more provides a measure for receiving, keeping, and having oysters in sacks than it does for having them on the half-shell.

Judgment set aside, aná defendant ordered released without day.  