Ex parte Vance

De Haven, J. — The return to the writ of habeas corpus issued herein shows that the petitioner, D. M.Vance, was, on October 18,1889, adjudged by the superior court of Sacramento County to be guilty of contempt, and to pay a fine therefor of three hundred dollars, and to be imprisoned in the county jail of Sacramento County until such fine was paid, in the proportion of one day for every dollar of the fine. The petitioner was on that day committed to jail under said judgment, and there remained until October 22, 1889, when he was released by the sheriff, and remained at liberty, free, and without confinement, until June 10, 1891, at which date he was rearrested, under an order of the superior court made June 9,1891, directing that its former judgment be enforced. The release of petitioner by the sheriff was not by any order of the court, but upon an undertaking given by petitioner on appeal to the supreme court from said judgment of contempt, and it may be assumed that both the sheriff and the petitioner acted upon the belief that the execution of said judgment was stayed by said appeal and undertaking. The petitioner now claims his release, upon various grounds which assail the validity of the original judgment for contempt, and also because “ the term of such imprisonment has long expired, and there having been no legal or authorized suspension of said judgment.”

In regard to the first claim of petitioner, it will be sufficient to say that the affidavits charging him with contempt were such as to authorize the order which directed him to show cause why he should not be punished for the contempt therein alleged, and the subsequent proceedings, ending in the judgment for contempt, were regular and the judgment itself valid.

The remaining ground upon which, the petitioner [210]claims his release presents the single question whether his release from jail under the circumstances here stated, and thereafter remaining at large, with free and perfect liberty, for a length of time sufficient to have satisfied said judgment if he-had remained in jail, operate as a complete execution of the judgment; and it would seem from the mere statement of the proposition that the contention of petitioner on this point cannot be sustained. The sentence of the court was that he pay a fine, and that part of the judgment relating to imprisonment was merely incidental to the judgment of fine, and in the nature of an award of execution directing the particular way in which that judgment should be enforced, in the event of the non-payment of the fine imposed; and it seems clear to us that such judgment can only be satisfied by a compliance with its terms. In this case it is admitted that the judgment of fine has not been paid, and that the defendant has not suffered the alternative of actual imprisonment.