In Re Humphrey

This is an application for a writ of habeas corpus.

Petitioner was charged with the unlawful sale of intoxicating liquor and with a prior conviction of a like sale. He admitted the prior conviction and was convicted of the unlawful sale charged. The court sentenced him to pay a fine of $1,000 and to be imprisoned in the state prison “for the term provided by law.” Petitioner contends that the court exceeded its jurisdiction in sentencing him to imprisonment in the state prison.

The Wright Act adopts by reference “the penal provisions of the Volstead Act.” (Stats. 1921, p. 79.) Such provisions thereby became a part of the law of this state to the same effect as if they had been set out at length in the adopting act. (Ex parte Burke, 190 Cal. 326 [ 212 Pac. 193 ].) Section 29 of the Volstead Act provides: “Any person who manufactures or sells liquor in violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month nor more than five years.” (Fed. Stats. Ann., 1919 Supp., p. 215 [U. S'.…