Ex parte Ellis

Department No. 1, McKinstry, P. J.: The judgment of the Justice of the Peace, as appears by the transcript from his minutes, is in the following words: “ Defendant brought into court at his special instance and request, and pleaded guilty as charged in the cbmplaint; and having waived the legal time for sentence, whereupon the Court doth order and adjudge that the defendant be fined in the sum of [205]three hundred dollars, ($300) and in default of the payment of said fine, that said defendant be and is hereby committed to the Sheriff of Fresno County, and by said Sheriff imprisoned in the county jail of said county not exceeding three hundred days.”

Section 1205 of the Penal Code reads: “A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the imprisonment, which must not exceed one day for every dollar of the fine.”

The Court does not adjudge that the defendant has failed to pay the fine, and thereupon direct that he be imprisoned three hundred days; and it is perfectly manifest that, when the judgment was being pronounced, the Court could not have known that the fine would not be paid. The language imports that he shall be imprisoned “ not exceeding ” three hundred days, in case he shall not pay the fine. Considered in their relation to the context, the words that he be imprisoned “ in default of the payment of said fine,” are the equivalent of those found in the section of the Penal Code, “ that he be imprisoned until the fine be satisfied.” In Georgia the form required by the law was that the defendant should stand committed until the fine be paid. The Supreme Court of that State held good a judgment that defendant pay a certain fine, and on failure to pay the same that he be committed to jail for three months, unless sooner paid. (Brink v. The State, 22 Ga. 98.)

We think, also, the direction that he be imprisoned in default of payment of the fine, or, in other words, that he be imprisoned in case the fine be not satisfied, “ not exceeding three hundred days,” is a compliance with the portion of the same section which requires a specification of the extent of the imprisonment “ not to exceed ” a certain limit. Since the imprisonment may on any day be brought to an end by payment of the fine, it is manifest that the statute can only mean that the maximum shall be specified or named with certainty. We reach the conclusion, therefore, that, however inartificially drawn, the judgment of the Justice accords with the statute.