The opinion
MR. JUSTICE ANGSTMAN
concurring in part and dissenting in part.
I agree that defendant’s conviction must stand. I do not agree that we should fix the punishment at one year or otherwise but I think the cause should be remanded with directions to the trial court to fix the punishment within the limits provided by section 94 2004, R.C.M. 1947.
It is true that the trial judge thought the defendant was entitled to the minimum sentence, but he erroneously thought *389 that the minimum was ten years which would have been the case had the court been justified in considering the prior conviction.
It does not follow that the trial judge would have concluded that defendant was entitled to the minimum sentence when that was shown to be one year. Under section 94-2006 the punishment may be “for not less than one nor more than fourteen years. ’ ’ The trial judge should fix the punishment within those limits.