People v. Barrett

ALLEN, P, J.

Action upon an undertaking. Judgment for plaintiff, from which defendants appeal.

It appears from the record that Barrett was convicted of a misdemeanor by a magistrate and adjudged to pay a fine of $500 and be imprisoned for thirty days, and in default of payment of such fine that he be imprisoned at the rate of one dollar a day for each dollar of fine. From thij judgment he appealed, and the undertaking sued on in this action was given, which undertakes and promises on the part of defendant that, in case said judgment be affirmed or modified, or the appeal be dismissed by said superior court, Barrett will pay the fine and render himself to said justice in execution of said judgment of thirty days’ imprisonment and to obey all orders and processes of said justice’s court in fulfillment of said judgment; or, in case the judgment be set aside and a new trial ordered by said superior court, that defendant will appear in said superior court and submit himself, etc. This undertaking was given pursuant to section 1273 of the Penal Code, which provides for admission to bail after conviction—■

“First—If the appeal is from a judgment imposing a fine only, on the undertaking of bail that he will pay the same, or such part of it as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed.

“Second—If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof.”

Appellants’ contention is that the undertaking is void as being more onerous than the statute requires in this: that under its terms the penal sum is payable even though the judgment be modified in respect of the fine or imprisonment. That portion of the bond which refers to the payment of the

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fine may be disregarded. The fine, while fixed, was subject to payment at defendant’s election by imprisonment. The second subdivision of section 1273 is the one to be considered in determining the effect of the bond.