In Re Glavich

[724]

THE COURT.

Application for a writ of

habeas corpus.

The petitioner was convicted in the justice’s court of a violation of the Wright Act (Stats. 1921, p. 79), in that he unlawfully had in his possession certain intoxicating liquor containing more than the legal alcoholic content. The judgment and sentence of the court was that petitioner “pay a fine of five hundred dollars or be imprisoned in the county jail five hundred days.” He is now in custody under the commitment issued on the judgment. The point of his application for release on a writ of

habeas corpus

is, that under section 29 of title 2 of the Volstead Act (U. S. Comp. Stats. Ann. Supp. 1923, § 10138%; Fed. Stats. Ann. 1919', p. 197), which by adoption is now a part of the Wright Act, the only penalty that can be imposed for a first offense is a fine of not more than five hundred dollars. There can be no sentence to imprisonment. The point is well taken

(Ex parte Adams,

61 Cal. App. 239 [214 Pac. 467]), but it does not follow that petitioner is entitled to be released from imprisonment on this «application.

In the first place, it is not alleged, and is nowhere made to appear, that petitioner’s conviction was for a first offense. In the second place, and assuming that the conviction was for a first offense, the court had jurisdiction to impose a fine not exceeding five hundred dollars, and, in addition to imposing the fine, might have directed that the defendant be imprisoned until the fine be satisfied, in the proportion of one day’s imprisonment for every dollar of the amount. (Pen. Code, sec. 1446.) Such may have been the intention of the court in this case, but in imposing an unqualified sentence for a definite term of imprisonment it exceeded its power. When -petitioner has paid the fine imposed upon him, if he be thereafter held in custody, he will be in a position to seek his release.

The petition is denied without prejudice.