170 P. 1045 | Mont. | 1918
delivered the opinion.
On December 1, 1917, William Londos pleaded guilty to a charge of gambling, and was sentenced to imprisonment in the county jail for a term of thirty days, and to pay a fine of $250. The judgment provides that if the fine be not paid, the defendant shall stand committed for a term equal to one day for every $2 of the fine after the expiration of the thirty days’ imprisonment. The prisoner having served his term of thirty days applies for his release from custody upon the theory that our statutes do not authorize the imposition of imprisonment to satisfy the fine in any case where the punishment imposed is a definite term of imprisonment and a fine in addition thereto.
By Chapter 86, Laws of 1917, the punishment prescribed for a violation of the anti-gambling law is (1) a fine not less than $100, nor more than $1,000, or (2) imprisonment in the county jail for a term not less than three months nor more than one year, or (3) both such fine and imprisonment. Sections 9371 and 9379, Revised Codes, provide:
“Sec. 9371. A judgment that the defendant pay a fine and costs may also direct that he be imprisoned until both fine and costs are satisfied, specifying the extent of the imprisonment, which must not exceed one day for every two dollars of the fine and costs.”
“See. 9379. If the judgment is for imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with.”
It is the contention of this petitioner that these statutes authorize imprisonment only in case the prisoner is adjudged
If section 9371 above was intended to prescribe the mode of enforcing the penalty imposed, there would be merit in this petition; but the purpose of that section is to recognize the existing common-law method of enforcing the judgment and to fix a definite limit to the extent of the imprisonment — something the common law apparently omitted. (19 Cyc. 554.) The penalty imposed in this instance was imprisonment for thirty days and a fine of $250. The imprisonment after the
The writ of habeas corpnis heretofore issued is quashed, and the petitioner is remanded to the custody of the sheriff of Yellowstone county.