concurrence"> Ellis, J.

(Concurring specially).—By decision of this court filed February 12, 1932, the judgment in the above case was affirmed. Reffkin, alias Chase, was indicted for an alleged violation of Chapter 8466, Acts 1921, Section 7308 C. G. L. 1927, by defrauding J. D.' Sinclair “oht of something of value, to-wit: forty thousand dollars ’ ’ by assuming to have and to be able to obtain inside information regarding a certain horse race. The offense was alleged to have been committed in St. Johns County.

Reffkin, after his arrest and imprisonment, sotight to be discharged on a writ of habeas corpus. He contended that the act denouncing the alleged offense upon which he was indicted was invalid. The sheriff made return that he held Reffkin, indicted under the name of Chase, by virtue of a capias issued out of the Circuit Court for St. Johns County. The capias was attached to the return and made a part of it. The judge of the Circuit Coiirt remanded the petitioner to the custody of the sheriff to which order Reffkin obtained leave to take a writ of error from this Court.

The order was affirmed by this court as stated above. A petition has been filed for a rehearing. I think a rehearing should be denied for the reaso'n that Section 7308 C. G-. L. *225 1927 defines a criminal offense and Section 7309 C. G. L. 1927 prescribes a penalty at least in so far as the imposition of a fine is concerned. I do not agree that the phrase ‘ ‘ shall be fined not more than ten thousand dollars and ten years in the State penitentiary” should be interpreted as prescribing an impossible penalty in as much as there can be no “fine” of ten years in the State penitentiary. I think that so' much of the phrase may be eliminated leaving the punishment for the commission of the offense to be a fine, if indeed not also an imprisonment. I therefore think that the language of the original opinion should be modified to conform to' the above expressed views.

Citation profile

How this case has been treated — in progress