Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-05-04
OUT OF STATE PRISON.
Judge Armstrong Decides Palermon Or
tega Illegally Held.

Judge Armstrong Decides Palermon Or
tega Illegally Held.
In the Superior Court yesterday Judge
Armstrong rendered his decision in the
habeas corpus case of Palermon Ortega,
mention of which was made in the RECORD
UNION at the time the writ was issued
The decision is a very important one, the
learned Judge holding that it is not within
the jurisdiction of Superior Court to SEN
tence man TO satisfy fine by imprison-
ment in the State Prison. The decision re-
cites the facts in the case, and is as follows:
The petitioner, Palermon 0rtega, was
convicted of an assault with a deadly weapon
in the Superior Courtin and for the county
OF Ventura i'll this State, and sentenced to
two years Imprisonment in the State
Prison at Folsom and that he pay fine of
81 900, and in case said fine be not paid at
the expiration of said term of TWO years
that the defendant be imprisoned in the
State Prison of the State of California at
Folsom until the fine be duly satisfied in
the proportion of one days imprisonment
for every dollar of said fine, and on the
payment of such portion of said fine as
shall not have been satisfied by imprison-
ment at the rate prescribed, that the de-
PENDANT be discharged from custody
The return of the Warden to the writ
OF habeas corpus issued and served on him
in this proceeding shows that, allowing the
prisoner the credits which he earned, his
term of two years Imprisonment has ex-
pired and that he is held in the State Prison
for the satisfaction Of the fine The cues
ton then is: Can the prisoner be held in
the State Prison in default of paving the
ftp e until it is satisfied? There is nothing
in Section 245 of the Penal Code, under
which The sentence was pronounced against
the prisoner, that in any degree indicates
that III default of the payment of the fine
the prisoner should be imprisoned in the
State Prison until the fine should be salts
fled; nor is there any statute or provision
OF the Codes which authorizes the impris-
onment in the State Prison for non-pay-
ment of a fine. If an offender could be
imprisoned in the State Prison for the non
payment of fine imposed as a punish
ment for an assault with deadly weapon
he could, with the same legal authority
and no other, be imprisoned at the State
Prison for the non-payment of fine
imposed as punishment for q simple as
sault. This could not be done. The law
has fixed and defined the place of imprison-
ment in such cases. Section 1897 of the
Penal Code provides that The common
laliS IN the several counties of the State are
kept by the Sherltfs of the counties in
which they are respectively situated, and
are used as follows: 3 g. For
the confinement of persons committed for
contempt, or upon civil process, or by au-
thority Of law person committed for
non-payment of a fine is committed by au-
thority of law, and in the absence of any
other provision of law designating dilfer-
ent place of confinement, ali persons must
be committed to the common jail for fail
IRE to pay fine imposed in q criminal
action, upon the maxim that the expression
OF one thing in statute is the exclusion.
by implication, of all others.
=" Then it is clear that the part of the
Judgment in the case of the People VS..
Palermon Ortega, which directs that he be
imprisoned in the State Prison until the
fine be satisfied, is illegal and without au-
thority of law. The judgments of Superior
Courts, as well as the judgments of in
ieilor Courts, are void when those Courts
exceed their jurisdiction, to the extent of
the excess anc the want of jurisdiction ap-
pears on the face of the judgment (Church
on habess corpus, 1854 1t follows that
the Warden of the State Prison al Folsom
has no authority TO hold the prisoner; bnt
il seems TO me that the Court rendering the
judgment may commit him to the com
mon Jail IN Ventura county; but it is not
necessary TO decide this point. It is or
dered that the prisoner be discharged