Ex parte Soto

I dissent. In the case of Ex parte Bernert, 62 Cal. 524 , where the judgment of the court was that “ the defendant pay a fine of twenty dollars, and the minimum fine recognized by law for the offense charged was one hundred dollars,” this court said: “ The judgment of the police court in the case before us is certainly void, because it is not one which includes any judgment which that court has jurisdiction to render in such a case.”

And the judgment in this case under which the petitioner is held in custody is certainly void, because it is one which the court had no authority in law to render.

The judgment consists of two distinct portions: 1. That the defendant pay a fine; 2. That in default in the payment of the fine he be imprisoned at the rate of one day for each two dollars of the fine. These portions of the judgment are of equal gravity and equally require sound law upon which to stand.

I thought this court went too far in its construction of section 1446 of the Penal Code in Ex parte Erdmann, ante, p. 579, and now the construction placed upon this section in the foregoing opinion would render it unrecognizable by the legislature that created it, and cannot be supported…

The petitioner was convicted in the recorder’s court of the city of Pomona, upon a charge of violating a city ordinance, and sentenced to pay a fine of $150, and in default of such payment to be imprisoned in the city jail in the proportion of one day’s imprisonment for each two dollars of the unpaid portion of said fine.

The punishment prescribed by the city ordinance under which the petitioner was convicted is a fine not exceeding three hundred dollars, or imprisonment not exceeding three months, or both such fine and imprisonment. And it is claimed that a judgment imposing a fine only cannot be enforced by imprisonment, because the ordinance does not authorize imprisonment for that purpose.

But it is not necessary that such authority should be found in the ordinance if section 1446 of the Penal Code applies to cases tried in the recorders’ courts of cities of the fifth class.

By that section it is provided that “ a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, in proportion of one day’s imprisonment for every dollar of the fine.”

It is contended, however, that since this provision *626 only applies to proceedings…

I concur in the judgment. Under section 1446 of the Penal Code, the court, after determining that its judgment of fine should be satisfied by imprisonment, ought to have directed that the petitioner “be imprisoned until the fine be satisfied, in the proportion of one day’s imprisonment for every dollar of the fine.” This is the language of the statute; and as it is definite and clear, there is no reason for placing upon it any other construction. The judgment under which the petitioner is imprisoned is not in this form, and is for this reason erroneous. But there is a wide difference between a judgment in which there is error which would be corrected on appeal, and one that is void in the extreme sense; and it is only in this latter class that the court is authorized to discharge upon habeas corpus a defendant imprisoned thereunder. In my opinion, the judgment here assailed is not absolutely void. The court had jurisdiction of the subject-matter of the action, and of the person of petitioner. Its judgment that he pay the fine imposed was authorized bylaw; and it also had the right to direct imprisonment for the satisfaction of the fine, and its judgment in this respect is not…