In Re Humphrey

California Court of Appeal Nov 28, 1923 No. Crim. No. 744.Published

Before: Finch

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Holding. The court held that the petitioner's conviction for a second offense of selling liquor under the Wright Act constitutes a misdemeanor rather than a felony, rendering the sentence of imprisonment in the state prison void. Consequently, because the court had already imposed a valid fine, its power to sentence the petitioner was exhausted, and the petitioner was entitled to discharge from custody.

Issues

Whether a second offense of selling liquor under the Wright Act constitutes a felony or a misdemeanor under California law.
Whether the trial court exceeded its jurisdiction by sentencing the petitioner to state prison for an offense not classified as a felony.
Whether the court's power to sentence the petitioner was exhausted after the imposition of a valid fine.

Disposition. Petitioner discharged from custody.

Quotations verified verbatim against the opinion

“If the offense of which petitioner was convicted is a misdemeanor only, then the court exceeded its powers in sentencing him to imprisonment in the state prison.”

“The conclusion would therefore seem irresistible that, since the offense is clearly a crime for which a penalty is imposed, the punishment for which, however, is not that prescribed for a felony, it must necessarily and logically follow that it is a misdemeanor.”

“The petitioner is discharged from custody.”

FINCH, P. J.

This is an application for a writ of

habeas corpus.

Petitioner was charged with the unlawful sale of intoxicating liquor and with a prior conviction of a like sale. He admitted the prior conviction and was convicted of the unlawful sale charged. The court sentenced him to pay a fine of $1,000 and to be imprisoned in the state prison “for the term provided by law.” Petitioner contends that the court exceeded its jurisdiction in sentencing him to imprisonment in the state prison.

The Wright Act adopts by reference “the penal provisions of the Volstead Act.” (Stats. 1921, p. 79.) Such provisions thereby became a part of the law of this state to the same effect as if they had been set out at length in the adopting act.

(Ex parte Burke,

190 Cal. 326 [212 Pac. 193].) Section 29 of the Volstead Act provides: “Any person who manufactures or sells liquor in violation of this title shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month nor more than five years.” (Fed. Stats. Ann., 1919 Supp., p. 215 [U. S'. Comp. Stats., Ann. Supp. 1923, sec. 10138%p].) The act contains no provision as to the place of imprisonment, nor does it specify whether the offenses therein enumerated shall constitute felonies or misdemeanors. If the offense of which petitioner was convicted is a misdemeanor only, then the court exceeded its powers in sentencing him to imprisonment in the state prison. In a ease in which the defendant had been sentenced to imprisonment in a penitentiary contrary to law it is said: “The court below was without jurisdiction to pass any such sentences, and the orders directing the sentences of imprisonment to be executed in a penitentiary are void. This is not a case of mere error, but one in which the court below transcended its powers.”

(Ex parte Mills,

135 U. S. 263 [34 L. Ed. 107, 10 Sup. Ct. Rep. 762, see, also, Rose’s U. S. Notes].)

[574]

In Re Humphrey

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FINCH, P. J.

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