In re Estate of Mulholland

Paterson, J. The petitioner was convicted in the police court of the city and county of San Francisco, January 16,1893, of the crime of battery, and sentenced [528]to pay a fine of one hundred dollars, or in default of the payment thereof, to be imprisoned at the rate of one day for each dollar of .said fine remaining unpaid.

The petitioner claims that the court below had no authority to imprison him for more than fifty days; that the sentence ought to have been no greater than one day for each two dollars of the fine. In support of this contention he relies upon section 1205 of the Penal Code as amended March 19, 1891. (Stats. 1891, p. 52.) That section, as originally incorporated into the code, provided that the judgment should specify the extent of imprisonment, “which could not exceed one day for every two dollars of the fine.” Section 1446 of the Penal Code, relating to proceedings in justice’s and police courts, provided that a judgment that the defendant pay a fine might also direct that he be imprisoned until the fine is satisfied, in the proportion of one day’s imprisonment for every two dollars of the fine. Both of these sections were amended in 1874 by inserting the words “ one dollar ” in lieu of the words “ two dollars,” as used in each section. Section 1446 has remained the same as thus amended. The amendment to section 1205, approved March 10, 1891, provides that the imprisonment “must not exceed one day for every two dollars of the fine, nor extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted.”

In my judgment, the recent amendment to section 1205 in no way affected the operation of section 1446. I fliink that the legislature intended that the justice’s and police courts should remain clothed with the discretion which they have exercised under section 1446 ever since its adoption. The amendment to section 1205 is a limitation upon the powers of the superior courts, which alone have jurisdiction of misdemeanors ■—with one or two exceptions (Code Civ. Proc., sec. 115) —for which the punishment may be greater than six months’ imprisonment, or five hundred dollars fine, or [529]both. In certain cases the superior court may impose as a penalty for a misdemeanor several years’ imprisonment in the county jail, or five thousand dollars, or both such fine and imprisonment. It is altogether likely that the members of the legislature had observed in. some instances an abuse of discretion in the exercise of' this authority by the superior courts under the provisions of the statute, and desired to limit their power-in that regard.