In Re Salas

BARNARD, P. J.

In this petition for a writ of

habeas corpus

it is alleged that Frank Salas was charged in a criminal proceeding in the Justice’s Court of the City of Riverside with the crime of vagrancy; that “one count” of the complaint charged him with a violation of subdivision 1 of section 647 of the Penal Code; that “a second count” charged him with a violation of subdivision 5 of that section; that both violations were alleged to have been committed on one and the same day; that he was tried by a jury and found guilty of “the offenses charged in the two counts of vagrancy referred to”; that he was sentenced to

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the term of six months in jail on each of said counts of vagrancy with the further order that said sentences should run consecutively, making the total sentences for the said offenses a period of twelve months’ imprisonment; that he .appealed to the Superior Court of Riverside County on various grounds including the insufficiency of the evidence; that the judgment and sentence were there affirmed; that he has served more than six months of said imprisonment; and that he is still confined in the county jail. It is further alleged that the said Frank Salas is unlawfully and illegally detained and confined for the reasons that subdivisions 1 and 5 of section 647 of the Penal Code are unconstitutional and that the justice’s court in question exceeded its jurisdiction in that two separate sentences of six months each were imposed for the conviction of one and the same crime, to wit, vagrancy.

In his return, the respondent sheriff sets forth that he is holding the said Frank Salas by virtue of a commitment issued out of said justice’s court and a modified judgment issued by the Superior Court of Riverside County, copies of both of said instruments being attached to the return. The commitment sets forth that a complaint had been filed charging the said Frank Salas with “certain public offenses, to-wit: a misdemeanor, to-wit: violation of sections 647 and 650%” of the Penal Code, committed on January 13, 1934, that a warrant had been issued, that he had been arrested and tried by a jury and found guilty as charged in the complaint, and orders and adjudges that the said Frank Salás is guilty of the crime of misdemeanor, to wit, violation of sections 647 and 650% of the Penal Code and that he be imprisoned in the county jail .for the term of six months on each of four named counts, the' sentence as to counts 1, 2 and 3 to run consecutively, and as to count 4 to run concurrently therewith. The modified judgment, entered on appeal in the superior court, recites that the said Frank Salas had been duly convicted of the crime of a misdemeanor, to wit, violation of sections 647 and 650% of the Penal Code on four separate counts, that he was sentenced to six months in the county jail on each count, the sentence on the first three to run consecutively and the fourth to run concurrently with the others, and that the matter had been presented upon appeal. It then orders the judgment