State v. Kroeger

(concurring). — I concur in reversing and remanding as decided in the divisional opinion. The dissenting opinion in division insists that we reject a construction of the Act of 1923, to which we have consistently adhered since its enactment.

The defendant was convicted of a felony, and the proof showed that he had committed only a misdemeanor. He sold a pint of whisky and for that transaction was assigned a residence of two years in the penitentiary. He did not manufacture whisky and there is nothing to show that the pint sold was unlawfully manufactured, a fact which the State must prove…