People ex rel. Gately v. Sage

The relator was convicted of assault in the second degree, and on the 30th day of December, 1892, sentenced to be "imprisoned in the state prison at Sing Sing, at hard labor, for thé term of five years, and pay a fine of $730, and in default of said payment of

At the time the sentence was imposed, the Penal Code (section 221) fixed the punishment for the crime of which the relator was convicted at “imprisonment in a penitentiary or state prison for a term not exceeding five years, or a fine of not more than $1,000, or both.” Counsel for thé relator insists that, conceding the power in the court to imprison in default of the payment of a fine, such imprisonment must commence to run at the same time as the absolute imprisonment, so that the punishment should not altogether exceed five years; in other words, that the clause “imprisonment in a penitentiary or state prison for a term not exceeding five years,” controls the meaning of the whole section, and that, when the maximum period of absolute imprisonment is imposed, the imposition of a fine has no effect. In support of his theory he calls attention to section 220 of the Penal Code, wMch fixes 10 years as the limit of punishment for assault in the first degree, making the extreme term of actual service, allowing the commutation for good behavior, six years and six months; whereas the five years’ absolute imprisonment and the fine of $1,000 would make an aggregate of actual service in prison of six years and four months, —there being no commutation allowed upon the term required to be served for nonpayment of a fine; and that the legislature could never have intended that for the lesser offense one should be punished with practically the same severity as for the greater. I entertain no doubt, however, that section 221 gives the court power to sentence for a term of five years, and to impose imprisonment for nonpayment of a fine in addition to the absolute imprisonment. People v. Sutton (Sup.) 6 N. Y. Supp. 95 . The precise question here raised seems not to have been passed upon in any reported case in this state, and I am left to such construction of the statutes as seems to me just and reasonable. The imprisonment, in a case like this, must be inflicted by confinement at hard labor in a state prison. Pen. Code, § 70á. I am unable to find any warrant whatever for confinement of a defendant at hard labor in a state prison as an alternative to the payment of a fine. Section 484 of the Code of Criminal Procedure provides that where a fine is imposed the judgment may direct that the defendant be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every dollar of fine. Section 487 of the same Code provides that, if the judgment be imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment be complied with. And section 488 provides that when the “judgment is imprisonment in a county jail, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all

I am confirmed in the foregoing' views—as to the lack of power to impose imprisonment in state prison, and as to the propriety of directing the relator’s absolute discharge—by the cases of Ex parte Kelly, 65 Cal. 154 , 3 Pac. 673 , and Ex parte Arras, 78 Cal. 304 , 20 Pac. 683 . Kelly was convicted and sentenced under section 243 of the California Penal Code, which makes battery a misdemeanor, and punishable by fine not exceeding $1,000, or by imprisonment in the county jail not exceeding six months, or by both. Section 1446 of the Penal Code of that state is almost identical with the last sentence of section 484 of our Code of Criminal Procedure. It reads as follows:

“A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied in the proportion of one day’s imprisonment for every dollar of the fine.”

As to the force of this section the court say:

“This section of the statute certainly allowed a substituted mode of paying the fine, and it may well be styled a substituted punishment in case of nonpayment, qualified as to payment and discharge of the defendant as in the judgment entered in this case. But this statute nowhere allows any addition

to this substituted mode of payment. We look in vain to find any authority in any tribunal, in the Penal Code, or any other codes, 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 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.”

In the Arras Case the question was as to the power of the court to impose imprisonment in state prison for nonpayment of a fine under the section of the Penal Code which imposed imprisonment in state prison or in a county jail not exceeding two years, or a fine not exceeding $5,000, or both, for assault with a deadly weapon. It was held that, “if a fine be imposed in addition to the sentence of imprisonment, it is beyond the power of the court to adjudge that it be enforced by further imprisonment in the state prison,” and that “a prisoner confined in the state prison after he has served the full term of imprisonment adjudged as a punishment, "and who is being held and imprisoned at hard labor solely for the purpose of collecting a fine imposed as part of the punishment, will be discharged on habeas corpus.”

An order may be entered directing the relator’s discharge. Relator discharged.