
    (November 2, 1909.)
    In re E. F. WALTON, Application for Habeas Corpus.
    [104 Pac. 659.]
    Criminal Appeals to District Court prom Probate and Justice’s Court — Jurisdiction op District Court — Selling Intoxicating Liquors Without a License.
    1. The decision of this court in the ease of In re Ira Alzamon Lúeas, ante, p. 164, followed and approved.
    2. Upon an appeal to the district court from the probate or justice’s court upon a conviction for selling intoxicating liquors without a license, where the supersedeas bond is given as provided for in Rev. Codes, sec. 8324, the district court has no power or jurisdiction to imprison the defendant.
    (Syllabus by the court.)
    Original proceeding in this court for writ of habeas corpus.
    
    Writ granted and prisoner discharged.
    
    W. B. Davidson, for Petitioner.
    D. C. MeDougall, Attorney General, and J. H. Peterson, Assistant Attorney General, for the State.
    Counsel file no briefs.
   STEWART, J.

— The petitioner in this case was charged with the crime of selling intoxicating liquors without a license and was tried before a justice of the peace in and for Ada county. He was convicted in the justice’s court and fined in the sum of two hundred dollars, with costs taxed at $69.44, and ordered imprisoned in the county jail till such fine and costs be paid, the time of imprisonment not to exceed one day for each two dollars of such fine and costs. From this judgment he appealed to the district court and gave the undertaking provided for in see. '8324 of the Rev. Codes. Upon trial in the district court he was convicted, and the court entered the following judgment against him:

“It is therefore ordered, adjudged and decreed that the said E. F. Walton is guilty of selling intoxicating liquors without a license, and that he be punished by imprisonment in the county jail of the county of Ada, state of Idaho, for the term of fifty days or pay a fine of one hundred dollars, or two dollars for each day of said term not served.
“The defendant was then remanded to the custody of the sheriff of the county of Ada, state of Idaho.”

The decision rendered by this court upon the petition of Ira Alzamon Lucas, for a writ of habeas corpus, is decisive of this ease, and for the reasons stated in that opinion, the judgment rendered by the district court in this case was in excess of the jurisdiction of such court, and the defendant must be discharged.

The punishment prescribed by Rev. Codes, see. 1518, for selling or giving away intoxicating liquors without first procuring a license, is a fine in any sum not less than $100 nor more than $300. Under this statute imprisonment cannot be made a part of the punishment by the district court, upon appeal from a conviction in a justice’s or probate court, where a supersedeas bond is given as provided for in Rev. Codes, sec. 8324, and the district court is without power or jurisdiction to imprison the defendant. The petitioner is discharged.

Sullivan, C. J., and Ailshie, J\, concur.  