In Nelson v. The People, 38 Mich., 618, disposed of at the last term, I expressed the opinion that where a party is convicted in a court of record of an offense for which he might have been tried in justice’s court, it was not competent for the court to impose upon him a sentence more severe than could have been imposed had he been tried in justice’s court. This case is one of that class; the offense being assault and battery, and the punishment for that offense, when imposed by a justice of the peace, being limited to three months.

The sentence imposed by the Recorder is of imprisonment for one year. By statute — Comp. L., § 7998 — a sentence merely excessive is to be reversed for the excess only, and this should therefore be affirmed as a sentence for three months only, and reversed as to the remainder.

Whilst 1 am not clear that the view here taken is correct, I am not prepared to say it is wrong, .and therefore I concur.