Ray

The appellant was charged by information, filed by the district attorney of Los Angeles County, consisting of two counts, with having violated the Motor Vehicle Act, in that while driving an automobile in said county he collided with another vehicle, causing personal injury to the driver thereof, and did then and there fail, neglect, and refuse to stop and render aid; and also that he drove and operated said automobile upon a public highway while under the influence of intoxicating liquor. Appellant was convicted of the latter charge, and appeals from the judgment and an order denying his motion for new trial.

It is strenuously urged that “there was no evidence of any kind or description that the defendant was operating the motor vehicle, to wit, the Cadillac roadster, at the time of the accident while in an intoxicated condition, or while under the influence of ‘intoxicating liquor,’ ” as defined by-section 112 of the Motor Vehicle Act (Stats. 1927, p. 1436; Deering’s Consol. Supp. 1925-1927, Act 5128). The portions of said section here applicable read as follows:

It is conceded that on September 25, 1927, at about 4 o’clock A. M., Melvin W. Metcalf, with three companions, was…

I dissent. Section 112 of the Motor Vehicle Act declares that the jury shall recommend the punishment, and under its provisions punishment may take on any one of three forms: 1. Confinement in the county jail for a fixed period; 2, confinement in the state prison for a fixed period; 3, fine in a fixed amount. The pun ishment, therefore, in my opinion, is not recommended if the verdict contemplates only a confinement in either of the two places, without specifying a period of time, or a fine without specifying an amount.

It is provided in the section that the court “shall have no authority to impose a sentence greater than that recommended by the jury.” It is obvious that in imposing “sentence” the court must either order imprisonment for a stated term, either in the county jail or in the state prison, or must order a fine in a stated amount. The statute provides a range within which imprisonment may be ordered, or a fine imposed. Imprisonment in the county jail is to be “not less than ninety days nor more than one year,” in the state prison “not less than one nor more than three years.” A fine may be “not less than $200' nor more than $5,000.” It will be observed how wide a…