Ferguson

This case was decided by this court September 19, 1932. Later a rehearing was granted and we now, after a thorough re-examination of the case and authorities, arrive at the same conclusion that we heretofore announced. In granting a rehearing we were impressed with the idea that the decision was harsh and that it was entirely possible that a man with innocent intent might be sent to the penitentiary. We have ever had this in mind during our re-examination. We cannot, however, avoid the rule as expressed in the opinion, upon ample authority and reason, that “Where the power exists to legislate, the court is not concerned with the wisdom or expediency of the law.” We have also had in mind the circumstance that the minimum punishment for the offense is incarceration in the state penitentiary and that the court is without the power to consider or grant probation. The underlying difficulties of this case are in principle thoroughly discussed and considered in People v. O’Brien, 96 Cal. 171 [ 31 Pac. 45 ], and we think our opinion is in accord therewith. As suggested in the last-cited case, there is a remedy for relief if the severity of the law visits an undeserved punishment upon a…