Daily Los Angeles herald., 1884-05-11
TINE xsl.Y CASE.
Judgement OF Township Justice
Ling Set Aside-Oplnion OF Mr..
Justice Thornton of the Supreme
Court.

It will be remembered by readers Of
the HERALD that, some weeks age,
ons John Kelly was convicted of the
crime of battery before r. A. Ling,
Justice OF the Peace in and for Los
Angeles Township, and fined $3.50 or,
in default of payment. to be Imprisoned
in the county jail. with labor on the
public streets. At the rate Of one dollar
per day until said fine should be paid
This sentence by its severity, created
considera Bile comment in the community,
and Col. John F. Godfrey, volunteer
counsel for the prisoner, filed petition
for writ Of habeas corpus for his dis
charge before Hon. Volney Z. Howard,
Judge of the Superior Court. which
petition was denied and the prisoner
remanded to the custody of the Sheriff.
Col. Godfrey then made application to
the Supreme Court, which was in session
in this city, for writ Of habeas corpus.
The Supreme Court granted the petition
sad, through Mr.. Justice Thornton,
delivered the following opinion discharg.
ing Kelly from custody. The opinion is
of especial interest inasmuch as it takes
away the power from justices Of the
peace to impose the penalty of labor on
the public streets in lien Of the payment
of fine. The opinion is as follows;
SUPREME COURT OF CALIFORNIA IN BANG
-Ex PARTE KELLY-FILED AP2IL 2S,
1854.
THORNTON, J.-Application for a writ
Of habeas corpus. The petitioner was
ACCUSED and convicted of battery, aud
the court rendered the following judg-
ment:
fHere follows the Judgment Of Justice
Ling. the substance OF which is given
above. 1t concludes: "And the said
defendant, while DO imprisoned, per-
form labor ON the streets or other public
works Of Los Angeles"
Battery is misdemeanor and ''is pun
ishable by fine not exceeding one thou
sand dollars. or by imprisonment in the
county Jail not exceeding six months, or
by both." Penal Code, Sec. 243.
1t was manifestly not the intention Of
the Justice Of the peace who tried the
cause to impose both fine and imprison-
ment as penalty. II that had been his
intention he would not have provided in
the judgment for the discharge of the
defendant on payment OF the fine, or
such portion of it as remained unsatis-
lied after crediting the defendant with
that poit on Of the imprisonment suf-
fered, at the rate Of one dollar day.
1t was clearly the intent to impose
penalty OF . fine. and in case it was not
paid, imprisonment until the fine was
satisfied, at the rate indicated in the
Judgment. This is justified by Section
l446 Of the Penal Code, whioh reads as
follows: IA judgment that the defend.
ant pay fine, may also direct that he
be imprisoned until the fine be satisfied,
| in the proportion Of one days imprison-
ment for every d )llar Of the tine." This
section of thesiatute certainly allowed d
substituted mode Of paying the fine, and
II may we'll be styled substituted pun
ishment in case Of non-paymcnt, quail
fled as to payment and discharge OF the
defendant as in the judgment entered in
this oase.
| But this statute nowhere allows any
addition to this substituted mode Of pay
ment. We look in vain to find any au-
thority, in any tribunal. in the Penal
Code, or any other code, to annex to this
substitution Of incarceration for coin,
any other punishment. We find no
power In the justice to add. as is done
by the judgment, that the defendant
while so imprisoned, perform labor on
the streets or other public works of the
city OF Los Angeles.
This portion Of the Judgment Is clearly
beyond and outside the jurisdiction Of
the tribunal which rendered it.
Now the judgment is 4 unit, and il one
portion Of it is without the jurisdiction
Of the justice, the Judgment is void.
We see no authority in this court on this
proceeding to hold portion of a judg-
ment surplusage, because not authorized
by law. to exscind such portion
from the judgment, aud order what
remains to be carried into execution. The
Judgment must be passed on as whole,
e4xAtt ~ Any ulutcti8t YoHtIOu Vi ~ u w GA
cess Of the Jurisdiction Of the court, the
Judgment is void. Further, what au.
| thority las this court to say, on an ap-
plication for discharge under the writ
Of habeas corpus, that the judgment Of
the court is any other than the Judgment
rendered? II we have authority to ex-
scind one portion, what portion shall II
bes What portion shall be held to be the
| judgment of the justice and what portion
not? The Judgment entry comes before
US as one thing, one portion as well at-
tested as the other. and as such we must
construe it, and ii one PARTON of the
Judgment is without authority of law,
we have no power under this writ, what
ever may be the power Of the court on
an appeal. to exscind portion Of the
Judgment aud hold what remains to be
the Judgment Of the count.
| 1t follows from what has been said
above that the petitioner is entitled to
be discharged.
On the argument our attention was
called to the sixth section Of the act Of
1872. The act is entitled "An act to
amend the charter Of the city Of Los An.
geIes, and was approved February 70,
1872. (See acts 1912, p. l29l The
sixth section has norsfsrence TO the case
Of Judgment imposing the penalty Of a
fine and imprisonment until the fine be
satisfied at q certain rate per day. 1t
only has reference to a case vherc 4 p
penalty g solitary confinement in the
county Jail.
Il was contendsd before us that the
| section above mentioned has beeu some.
time ago repealed. As to this we say
nothing, II Is unnecessary to pass on
this point.
The prisoner Is entitled to his dis.
charge, aud it is SO ordered.
sharpstein, j., McKinstry, j., and
Mckee, j., oonourred.
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