Pera

The attorney-general, in a petition for a rehearing of this case, has called our attention to two cases, People v. Brown, 113 Cal. 35 , [ 45 Pac. 181 ], and People v. Kerr, 15 Cal. App. 273 , [ 114 Pac. 584 ], not cited in the original briefs, which bear upon the question whether the court in this case exceeded its jurisdiction in adjudging that the defendant, upon defaulting in the payment of the fine imposed, should be imprisoned for .one day for every two dollars of said fine until the same is satisfied. It will be observed that, in the original opinion, we construed the broad language used in the case of Ex parte Rosenheim, 83 Cal. 388 , [ 23 Pac. 372 ], as declaring or implying that section 1205 of the Penal Code had no application whatever to a case where a term of imprisonment and also a fine were imposed. The eases above mentioned do not appear to give that, construction to said section. They seem to hold that the Rosen heim case merely meant to hold that in a case where both a fine and an imprisonment are authorized to be imposed and a sentence of imprisonment is adjudged, the court, while having authority also to impose a fine, is without legal power or authority, in…

Defendant was informed against by the district attorney of the county of Merced for the crime of keeping a place of public resort in no-license territory for the purpose of sale in no-license territory of alcoholic liquor. The jury returned a verdict of guilty as charged in the information. Defendant made a motion in arrest of judgment and a motion for new trial, both of which motions were denied. Judgment was pronounced and, as entered in the minutes of the court, read as follows:

The appeal, is from the judgment, the order denying the motion in arrest of judgment, and the order denying the motion for a new trial.

Appellant contends that the “judgment is excessive, void, and unintelligible.”

It appears from the record that, at the time of pronouncing judgment, the court imposed the fine of six hundred dollars, with the alternative of imprisonment, and then the following colloquy ensued:

It is the contention of appellant that, under the first part of the judgment, imposing a fine of six hundred dollars, or imprisonment for one day for each two dollars of the fine, he may be compelled to serve three hundred days, while, in addition, under the second part of the judgment, he…