Opinion
Docket No. 1969.
July 10, 1937.
PROCEEDING in Habeas Corpus to secure release from custody. Writ granted.
The facts are stated in the opinion of the court.
Raine Ewell for Petitioner.
Raymond D. Williamson for Respondent.
Petitioner was arrested on April 17, 1937, in San Francisco on a warrant issued upon a complaint charging petty theft. He was tried, convicted and sentenced to imprisonment in the county jail for a period of thirty days and to pay a fine of $250. [1] At the time of the rendition of the judgment and sentence imposing the fine no alternative of a further imprisonment for nonpayment of the fine was made and no imprisonment of petitioner was ordered by the court for nonpayment of said fine. The time of the imprisonment expired on May 14, 1937, at which time the court made and signed an additional order that petitioner be imprisoned for another thirty days or until the fine was paid, not exceeding $8.33 a day, said sum amounting to the $250 fine originally imposed. The court was without jurisdiction to make such nunc pro tunc order or any further or additional imprisonment of petitioner, it having exhausted its jurisdiction under the original judgment.
The writ is granted and the petitioner discharged.
Knight, J., and Cashin, J., concurred.