Ex parte Kelly

Thornton, J. Application for writ of habeas corpus. The petitioner was accused and convicted of a battery, and the court rendered the following judgment:—

“ In the court of the justice of the peace for the township of Los Angeles: In the county of Los Angeles, State of California: R. A. Ling, J. P.

“The people of the State of California, to the sheriff of the county of Los Angeles, greeting.

“ Whereas, John Kelly has this day been convicted before me, R. A. Ling, justice of the peace for the township of Los Angeles, county of Los Angeles, and State of California, of the crime of battery committed in said Los Angeles Township, on or about the 3d day of April, A. D. 1884. And whereas, upon such conviction I did consider and adjuge that for said offense the said John Kelly be fined in the sum of six hundred and fifty dollars, or be imprisoned in the county jail of said Los Angeles County in the proportion of one day’s imprisonment for every dollar of the fine until the fine be satisfied, not exceeding six hundred and fifty days, and the defendant to be discharged on payment of such portion of said fine not satisfied by imprisonment at the rate above specified. And whereas, the said John Kelly although requested to pay said fine has not paid the same, these are therefore to command you, the said sheriff, to take and receive the said John Kelly and imprison him in the county jail of Los Angeles County, in.the proportion of one day’s imprisonment for every dollar of the fine, until said fine be satisfied, not exceeding six hundred and fifty days, and the defendant to be discharged on payment of such portion of said fine not satisfied by imprisonment at the rate above prescribed. And the said defendant while so imprisoned, perform labor on the streets or other public works of the city of Los Angeles.

“ Given under my hand at the township of Los Angeles, in the county of Los Angeles, this 4th day of April, A. D. 1884.

“ R. A. Ling,

“ Justice of the Peace in and for Los Angeles Township and County, and State of California.”

[156]Battery is a misdemeanor and “is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding six months, or by both.” (Pen. Code, § 243)

It was manifestly not the intention of the justice of the peace who tried the cause to impose both fine and imprisonment as a penalty. If that had been his intention he would not have provided in the judgment for the discharge of the defendant on payment of the fine, or such portion of it as remained unsatisfied, after crediting the defendant with that portion of the imprisonment suffered, at the rate of one dollar a day.