
    In the Matter of the Application of Samuel Stewart for Writ of Habeas Corpus.
    Criminal Law: punishment. A justice of the peace in a proper case may impose a fine not to exceed one hundred dollars, or sentence to imprisonment not to exceed three months, hut cannot as a punishment for the same offense impose both fine and imprisonment.
    
      N. K. Griggs, for petitioner.
   By the Court.

The relator was tried before a justice of the peace and convicted of “unlawfully and willfully assaulting and beating Jennie Stewart, by striking said Jennie Stewart with his fist,” etc. The justice thereupon imposed a fine of fifty dollars upon the relator, and sentenced him “to three months’ imprisonment in the county jail of Gage county,” etc. He now seeks a discharge upon habeas corpus, upon the ground that the sentence is unauthorized.

Sec. 18, art. VI. of the constitution provides that “Justices of the peace and police magistrates shall be elected in and for such districts, and have and exercise such jurisdiction as may be provided by law; Provided, That no justice of the peace shall have jurisdiction of any civil case where the amount in controversy shall exceed two hundred dollars; nor in" a criminal case where the punishment may exceed three months’ imprisonment or a fine of over one hundred dollars; nor in any matter wherein the title or boundaries of land may be in dispute.” A justice of the peace, therefore, in a proper case, may impose a fine of not to exceed one hundred dollars or sentence to imprisonment not to exceed three months; but he cannot impose both fine and imprisonment. As be had imposed a fine, the sentence of imprisonment is in excess of the power of the justice, and is a nullity. The petitioner must therefore be discharged.

Judgment accordingly.  