Opinion
Crim. No. 2551.
February 20, 1923.
APPLICATION for a Writ of Habeas Corpus to release one convicted of violation of the Wright Act. Writ denied.
The facts are stated in the opinion of the court.
J. Morgan Marmaduke for Petitioner.
Petitioner seeks the release of John Frankovitch on habeas corpus. Frankovitch was convicted of selling liquor in violation of the Wright Act (Stats. 1921, p. 79), "and judgment was passed upon him to this effect: that he, the said John Frankovitch, was to pay a fine of $500.00 or be confined in the City Jail for the period of six months upon his failure to pay said fine." On February 13, 1923, Frankovitch notified the trial court that he was unable to pay the fine or any part thereof, whereupon he was committed to the county jail for the period of six months. The Volstead Act ( 41 Stat. 305) provides that for the first offense the person who sells liquor shall be fined not more than a thousand dollars, or suffer imprisonment not exceeding six months. It is claimed that this provision, adopted by our Wright Act, does not justify the alternative judgment imposed upon Frankovitch, because such judgment, in effect, provides for imprisonment for the nonpayment of the fine. [1] On the other hand, we think the judgment, properly construed, is one imposing a sentence of imprisonment for six months, but gives the party convicted the opportunity of escaping such punishment by the payment of a fine. Having failed to pay the fine he is in no position to complain of the imprisonment.
Writ denied.
Wilbur, C. J., Waste, J., Myers, J., Lennon, J., Seawell, J., Kerrigan, J., and Lawlor, J., concurred.