Millich

(after the facts as above).

Under repeated rulings of various federal courts, we think it clear that the demurrer to each of the counts of the indictment in this case under which conviction was had was properly overruled.

The late decision of the Supreme Court in the case of United States v. Yuginovich et al., 256 U.S. 450 , 41 S.Ct. 551 , 65 L.Ed. 1043 , held that the National Prohibí *129 tion Act, commonly known as the Volstead Act ( 41 Stat. 305 [ 27 U.S.C.A. § 1 et seq.]), repealed the previously existing provisions of the internal revenue laws only'to the extent of the clear inconsistencies of the two, but further held that, where the later act mentioned fixes a less penalty than the former revenue laws for substantially the same acts, the penalty fixed by the latter repeals that prescribed by the former. Therefore it is clear that the attorney for the government is quite right in conceding that the penalty imposed by the court below on the plaintiffs in error under count 3 of the indictment should be reduced to the extent of remitting the jail sentence, since the National Prohibition Act does not authorize the imposition of imprisonment as well as a fine for a first…