The herald., 1894-03-13
EXTRA IMPRISONMENT ON A FINE
Judge York Makes an Important
Ruling on a Law Point.
John L. Green Will Serve Only His
Six Months.
The Imprisonmsnt for Fine in Addition
to His Term of imprisonment De-
clarsd voId-Iateresting Ex-
position of the Law.

Judge York yesterday gave clear de-
cision upon a point which has been COM
ing up from time to time with reference
to the legality of fne in addition to q
term of imprisonment.
The matter came before him upon ap-
plication by John L. Green for a writ ol
certiorAri, and Judge York filed an opin-
ion in the case.
Green was convicted in Justice Aus
tins eoust November l, 1898, Of adult
cry, and November Sd was sentenced to
six months in the city Jail and to pay q
fine of $3.50. 1t was further ordered
that in default of the psyment of the
fine he be imprisoned in the city Jail for
$50 days, at the rate OF 81 day for each
dollar OF the fine.
1t was agreed that the only question
to be determined by the court was
whether the police Judge has the power
to order that the defendant be impris-
oned in addition to six months. for nom
payment of the fine of $3.50 in case the
fine be not paid.
In the course OF Judge York's opinion
he says:
Section 1906 of the penal code pro-
vides that a judgment that the defend
ant pay fine may also direct that be be
imprisoned until the fine be satisfied,
specifying the extent OF imprisonment,
and (which must not exceed one day for
every dollar of the ine.'
Section 1914 Of the penal code pro-
vides that If the judgment is for fine
alone, execution may be issued thereon
IS on judgment in q civil action
Section 1915 of the penal code pro-
vides that If the Judgment is for impris-
onment, the defendant must be forth
with committed to the custody OF the
proper officer, and by him detained
until the judgment is complied with.
and if the judgment is for fine and i'm
prisonment until it (the fne) be paid,
the defendant must forthwith be com
mitted to the custody OF the proper
officer, and by him detained until the
judgment is complied WITH
1T is held in ex-parte Rosenheim, S3
Cal, SS8. that these provisions of the
code do not provide for imprisonment
and fine, coupled with imprisonment
until the fine be paid, after the expira-
tion of the fixed term of imprisonment.
In the Rosenheim case the court further
says: The Judgment beiora US, as
stated in that case, is not, correctly
speaking and fully expressing it,
judgment that the defendant pay q fine.
1t ia judgment that he be imprisoned
and that he pay O fine. Within the
letter OF the statute, therefore, there 10
no authority for its application to cases
of this kind, and it is only by judicial
grating upon legislation that the sec.
tion can be made to support the ad6i-
tional penalty imposed by this judg-
ment.'
I'm the case of Lowry vs. Hogue, So
CAL, COL, on authority OF ex-parte Ro.
eenheim, supra, the supreme court Of
this state held that judgment for i'm.
prisonment for the collection of a fine
in addition to imprisonment imposed as
punishment was void, and ordered that
there pc stricken from the judgment
that portion thereof requiring the i'm.
prisonment for non-payment of the
fine"
Judge York in further discussion of
the case says that the only authority
cited on behalf of the respondent is the
case OF ex parte Green, "a CAL, 3S7, and
continues:
I'm that case the prisoner was con-
vioted Of misdemeanor, committed in
the city OF Pomona. But this conviction
was not under q statute of the state,
but under an ordinance of the city of
Pomona"
This ordinance provided for an impris.
onment and fine. In the case
the prisoner was remanded, but
Justices Mcfarland and Patterson dis.
sented. In the prevailing opinion the
sentence was sustained by distinction
between the facts OF the case and the
tacts OF ex parte Rosenheim. Judge
York, commenting upon the two cases,
says:
81 do not think the case of ex parte
Green overrules or even questions the
correctness of the decision in ex parte
Rosenheim. 1t i6 the settled law of
this state that in sentencing a party
convicted of a crime under the provis-
ions OF the penal code, to pay fms and
be Imprisoned, it is beyond the power
OF the court to order the defendant inn
prlsoned for the non-payment of the
fine in addition to the imprisonment
imposed as part of the punishment.
And it is the opinion OF the court tha.
that portion of the judgment in the
case of the People vs. John L. Green,
which provides for his imprisonment
for the non-payment of the fine inn
posed in addition to the imprisonment
imposed as q punishment is void"
1t is therefore ordered by Judge York
that that portion Of the Judgment pro-
viding for Green's imprisonment for
nen-psyment Of the fine OF $3.50 be
stricken out. and he be discharged
when his term OF six months is out.