In Re Montague

By section 112 of the California Vehicle Act (Stats. 1923, p. 517 [amended Stats. 1927, p. 1436]), penalties are imposed upon persons violating the provisions of said section. These penalties' include either fine or imprisonment, within certain stated limits. It is further provided: “and upon every verdict of ‘guilty’ under this section, the jury shall recommend the punishment and the court in imposing sentence shall have no authority to impose a sentence greater than that'recommended by the jury.” Section 1203 of the Penal Code contains an elaborate series of provisions of law relating to admission of convicted persons to probation. It is provided that the court may suspend •the imposing of sentence, and (among other things), in the order granting probation, and as a condition thereof, “may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the instant case.”

In the present proceeding it appears that the petitioner Montague was tried upon a charge of violation of section 112 of the California Vehicle Act, and that the jury, as a part of its verdict of guilty, fixed the penalty as imprisonment in the county jail for a period of…