[No. 3163.

June 8, 1926.]

#### STATE v. NEWMAN.

[246 Pac. 901.]

SYLLABUS BY THE COURT

Where a prosecution is had under an unconstitutional ■■statute, the case will be dismissed in this court and the ■defendant ordered to be discharged by the lower court.

Appeal from District Court, Chavez' County; Brice, ■Judge.

W. L. Newman was convicted of the unlawful possession of intoxicating liquor, and he appeals.

Motion to docket and affirm denied, and cause remanded with directions.

Robert C. Dow, Ass.t. Atty. Gen., for the State.

[[1] 16C.1 1>. 65 n. 58.

OPINION OE THE COURT

PARKER, C. J.

The Attorney General on behalf of ■the state has filed a skeleton transcript, together with' a motion for the affirmance of the judgment in this ¡ease for failure to perfect the appeal. The defendant *436was indicted, tried, and convicted for the unlawful possession of intoxicating liquor under the provisions of chapter 118, Laws 1923. We had this chapter under consideration in State v. Armstrong, 31 N. M. 220, 243 P. 333. In that case we held the act to be unconstitutional and void. There is no law, therefore, under which the prosecution in this, case can be sustained. The whole proceeding and sentence must consequently be held to be without force and effect.

It follows that the motion to docket and affirm should be denied, and the cause remanded to the district court with directions to set aside the judgment and sentence, and to discharge the defendant, and it so ordered.

BICKLEY and WATSON, JJ., concur.