Summary
In Ex Parte Mitchell (1886) 70 Cal. 1 [11 P. 488], however, we upheld a two-year prison term and $4,000 fine for assault with a deadly weapon, stating it was "not excessive, cruel or unusual within the meaning of section 6, article I, of the Constitution."
Summary of this case from People v. AndersonOpinion
Department One
THE petitioner was charged by an information with the crime of an assault with intent to commit murder. To this information he pleaded not guilty, was tried by a jury, who rendered a verdict against him of guilty of an assault with a deadly weapon. The judgment of the court was that he be imprisoned in the state prison at San Quentin for the term of two years, "and in addition thereto, he pay a fine of four thousand dollars, and be imprisoned in said state prison one day for every dollar of said fine," etc. The application was for a writ of habeas corpus to discharge him from his confinement under this judgment.
COUNSEL:
The punishment provided by section 245 of the Penal Code for the crime of an assault with a deadly weapon exceeds the penalty affixed to the greater offenses of assault to murder or manslaughter. The punishment is therefore excessive within the meaning of section 6 of article 1 of the constitution. (Cooley's Const. Lim. 377.) The judgment and commitment under which the petitioner is held are void, because it recites a verdict which does not find the petitioner guilty of any felony, but solely of a misdemeanor, for which no imprisonment is authorized in a state prison. The judgment is void in that it provides for the imprisonment of the petitioner in the state prison as a means of enforcing the fine. Under section 245 of the Penal Code, a punishment by fine cannot be imposed in addition to a punishment by imprisonment in the state prison. A fine can only be imposed where the imprisonment is ordered to be had in the county jail.
Carroll Cook, for Petitioner.
S. P. Hall, contra.
OPINION
THE COURT 1. The punishment authorized by section 245, Penal Code, is not excessive, cruel, or unusual within the meaning of section 6, article 1, of the constitution.
2. People v. Turner , 65 Cal. 540, to which we adhere, disposes of the second point made for petitioner. 3. The entire judgment is not void. That portion of it providing for imprisonment as a means of enforcing the payment of the fine is separable from the rest. The sentence to imprisonment as a punishment is in force, and the petitioner cannot now be discharged, whatever may hereafter be his rights regarding the order of imprisonment as to the fine. Whether he will be entitled [11 P. 489] to a discharge on the expiration of the two years, we indicate no opinion.
The petitioner is remanded, and the writ discharged.