People v. Magoni

FINCH, P. J.

By separate counts in the information the defendant was charged with two unlawful sales of intoxicating liquor, alleged to have been made on different days. She was convicted on both counts. Her motion for a new trial was denied. This appeal is from the judgment of conviction.

One witness testified in detail that the defendant made the sales as alleged. The liquor described in the first count contained ten per cent of alcohol by volume and that in the second count forty-seven per cent. The defendant testified that she did not make either sale. Under such state of the evidence the implied findings of the jury are conclusive on appeal.

The judgment provides that the defendant “be punished by a fine of one thousand dollars on the first count contained in the information and that in default of payment thereof that she be imprisoned in the county jail of Lassen County, State of California, for the term of six months” and that she “be punished by a fine of one thousand dollars on the second count contained in the information and that in default of payment thereof that she be imprisoned in the county jail of the County of Lassen, State of California, for the term of six months.”

Appellant contends that the provisions in the judgment for imprisonment in default of payment of the fines

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imposed by the court are unauthorized. The question may be considered as settled in this state contrary to appellant’s contention.

(Ex parte Garrison,

193 Cal. 37 [223 Pac. 64];

In re Kennerly,

190 Cal. 774 [214 Pac. 857].)

Appellant contends that “the fine is excessive and is a violation of the eighth amendment to the Constitution of the United States and of section 6, article I, Constitution of California.” The question is not whether this court would have imposed the fines under consideration, but whether, as a matter of law, the sentence imposed by the trial court is violative of the constitutional provisions cited. In