Ex parte Rosenheim

Paterson, J. — The petitioners are before us on a writ of habeas corpus. They ivere convicted in the police court of the city and county of San Francisco, December 10, 1888, of the crime of conspiracy, and sentenced respectively to serve a term of one year in the county jail, and to pay a fine, each, of one thousand dollars, and in default of payment thereof at the expiration of the one-year term of imprisonment, to be confined in said jail until the fine be paid, at the rate of one day for every dollar thereof.

The first point made by counsel for petitioner is, that the complaint under which they were prosecuted and convicted does not state facts sufficient to constitute a cause of action, and the judgment is therefore void. This point cannot be considered, because the complaint [389]is not before us; it is not made a part of the petition, it is not referred to in the return, no objection was made to the sufficiency of the return, and no offer was made at the time the matter was submitted to make the complaint a part of the record for our consideration.

The next point urged against the validity of the judgment is, that the court below abused its discretion, and imposed a fine which is excessive, within the meaning of article 1, section 6, of the constitution. The court imposed the maximum penalty allowed by law. It is contended that the punishment for this offense—conspiracy to obtain money by false pretenses—was never intended to be as great as that inflicted upon those found guilty of conspiracy to murder. Yet the court has in this case visited upon the petitioners a penalty as great as could have been imposed upon them if they had been charged with and found guilty of conspiracy to murder. It is sufficient to sa3r, in answer to this suggestion, that the court acted within the powers conferred upon it by the statute, and the statute itself makes no distinction — gives no direction—as to the penalties to be imposed in cases of conviction of the various offenses enumerated in the statute. It cannot be said, as a matter of law, that four years’ imprisonment upon conviction of the crime charged is excessive, or that the punishment is cruel, within the meaning of article 1, section 6, of the constitution.

The petitioners claim that, having served the one-vear term of imprisonment imposed by the judgment, they cannot now be imprisoned for failure to pay the fine of one thousand dollars.

They contend that section 1205 of the Penal Code does not apply to cases in which the judgment is for a fine coupled with a sentence of imprisonment, but applies only to cases in which a fine stands alone as the punishment.