244 P. 359 | Cal. | 1926
The petitioner alleges that he is unlawfully imprisoned in the county jail of the county of Sacramento; *223 that on the fourteenth day of March, 1924, he pleaded guilty in the superior court of the said county to a charge of violating the "Wright Act" (Stats. 1921, p. 79), resulting from the sale of intoxicating liquor in that county; that upon said day the superior court pronounced judgment by which it was decreed that he pay a fine in the sum of one thousand dollars "or in default of payment of said fine that he be punished by imprisonment in the County Jail . . . for the term of six (6) months"; that a warrant of commitment on said judgment was issued out of the superior court on said fourteenth day of March, 1924; that at the time of imposing said sentence and without his consent said superior court, of its own motion, made a minute order staying the execution of said judgment for a period of fifteen months; that said order of stay was made by the superior court because of the fact, as petitioner alleges, that he had, on the preceding day, to wit, March 13, 1924, been sentenced by the northern division of the United States district court for the northern district of California, to serve a term of fifteen months in the said county jail of Sacramento County; that on the seventh day of March, 1925, the petitioner was duly discharged from the county jail and the further service of the sentence imposed by the said district court of the United States; that he remained at large until July 7, 1925; that upon said day "said Sheriff, without any warrant, authority or process of law, seized upon and imprisoned the petitioner, and has ever since held him prisoner in said county jail at Sacramento, California, wholly on pretense that by reason of said purported stay of execution the sentence pronounced by the Superior Court on the 14th day of March, 1924, has not been served and that he should be imprisoned for six months next after the 7th day of July, 1925"; that application for a writ of habeas corpus was first made on July 26, 1925, to the district court of appeal, third appellate district, and was denied without prejudice; that on July 28, 1925, a similar application was made to the same court and was likewise denied; that thereafter application was made to the supreme court, which application was denied on August 1, 1925; that on August 24, 1925, a further application was presented to said district court of appeal "on grounds not presented on previous applications" and was denied; that this application is made *224 "upon the grounds last presented to said District Court of Appeal, viz.:
"1. The sentence imposed imprisonment as a punishment, therefore that part of the sentence providing for imprisonment is void.
"2. Unless it were a probationary measure, the order affecting to stay execution of the sentence was void.
"3. As a matter of fact there were not circumstances existing under which the Court had authority to stay execution of the sentence consequently the purported stay of execution was without effect.
"4. The purported stay of execution was made for the purpose of rendering the sentence imposed by the Superior Court cumulative upon the sentences imposed by the District Court of the United States which neither the Superior Court nor the Judge thereof had power to do.
"5. Petitioner was imprisoned at the place appointed upon a regular commitment issued upon the sentence for more than six months next after the date thereof, and therefore the sentence has been fully executed.
"6. That the only ground for petitioner's continued imprisonment is the purported stay of execution, and he is therefore deprived of his liberty without any warrant, process or authority of law."
1. In support of this contention it is urged that "A sentence which imposes a fine, or imprisonment in default thereof is bad, when it cannot be determined whether imprisonment is provided as punishment or as means of collecting the fine.Brownbridge v. People,
2-6. These several contentions, numbered 2 to 6 and set forth above, may properly be grouped, for, in effect, each attacks the validity of the order staying execution of the judgment and declares it to be void and in excess of the jurisdiction of the superior court, thus rendering the petitioner's present confinement illegal and void.
It is contended by the petitioner that the order staying execution of the judgment is void for "Cumulative sentences cannot be imposed except where they are authorized by sections 105 and
We are in accord with Ex parte Casey,
As already indicated, the petitioner had been convicted and judgment entered in the said United States district court on the day preceding his conviction and the entry of judgment in the state court. Therefore, at the time judgment was pronounced in the state court the petitioner was a federal prisoner and, under these circumstances, the question presented is whether the state of California could exercise jurisdiction over petitioner pending the execution of the federal judgment.
The case of Ponzi v. Fessenden,
"The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into *227 its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. . . .
"There is no express authority authorizing the transfer of a federal prisoner to a state court for such purposes. Yet we have no doubt that it exists and is to be exercised with the consent of the Attorney General. . . .
"Nor, if that be here important, is there any difficulty in respect to the execution of a second sentence. It can be made to commence when the first terminates. . . ." (Italics added.)
Other federal cases affirming the rule that "When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted" are Patterson v.Veasey, 295 Fed. 163, 165, United States v. Twenty-six Casesof Intoxicating Liquors, 287 Fed. 542, Harlan v. Harlan, 281 Fed. 602, 603, Harkrader v. Wadley,
In the instant case, quoting the language of the district attorney at the oral argument, the petitioner "came into court voluntarily." The petitioner having come into the state court voluntarily and no objection having been made thereto by the federal authorities, in whose custody he was at the time, it must be presumed that petitioner was properly before the state court. But, as the federal court first assumed jurisdiction over petitioner, it follows from the principle enunciated by the foregoing authorities that the judgment of the state court had to be stayed pending the satisfaction and exhaustion of the federal judgment.
As additional reasons for the discharge of the writ we will consider two other grounds urged by the respondent against petitioner's release, namely, (1) that the provisions of section
(1) Assuming that section
"The sentence imposed upon the petitioner was that she pay a fine. Imprisonment was not the punishment inflicted, but was only to take place in the contingency that the fine was not paid or collected.
"We think the section of the Penal Code quoted [669] and upon which petitioner relies must be limited to those cases where there have been two convictions and the punishment for each is fixed at imprisonment, and is not applicable to a case where the punishment of one of the offenses is a fine, with an alternative of imprisonment in the event the fine is not paid."
In view of Ex parte Selowsky, supra, it cannot be held that section
(2) Ex parte Clark,
Keeping in view the circumstances of the instant case, it cannot be held that the order of the superior court suspending execution of its judgment was intended to extend to the petitioner the probationary privileges provided for in section
Upon the three indicated grounds the writ of habeas corpus is discharged and the petitioner remanded to custody.
Richards, J., Shenk, J., Waste, C.J., Curtis, J., Seawell, J., and Lennon, J., concurred. *230