In Re Frankovitch

California Supreme Court

In Re Frankovitch

213 P. 39, 190 Cal. 440, 1923 Cal. LEXIS 549

CourtCalifornia Supreme Court

DecidedFebruary 20, 1923

DocketCrim. No. 2551.

StatusPublished

Cited by2 cases

This text of 213 P. 39 (In Re Frankovitch) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Frankovitch, 213 P. 39, 190 Cal. 440, 1923 Cal. LEXIS 549 (Cal. 1923).

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Opinion

THE COURT.

Petitioner seeks the release of John Franhovitch on habeas corpus. Frankovitch was convicted of selling liquor in violation of the Wright Act (Stats. 1921, p. 79), “and judgment was passed upon him to this effect: that he, the said John Frankovitch, was to pay a fine of $500.00 or be confined in the City Jail for the period of six months upon his failure to pay said fine.” On February 13, 1923, Frankovitch notified the trial court that he was unable to pay the fine or any part thereof, whereupon he was committed to the county jail for the period of six months. The Volstead Act (41 Stat. 305) provides that for the first offense the person who sells liquor shall be fined not more than a thousand dollars, or suffer imprisonment not exceeding six months. It is claimed that this provision, adopted by our Wright Act, does not justify the alternative judgment imposed upon Frankovitch, because such judgment, in effect, provides for imprisonment for the nonpayment of the fine. [1] On the other hand, we think the judgment, properly construed, is one imposing a sentence of imprisonment for six months, but gives the party convicted the opportunity of escaping such punishment by the payment of a fine. Having failed to pay the fine he is in no position to complain of the imprisonment.

Writ denied.

Wilbur, C. J., Waste, J., Myers, J., Lennon, J., Seawell, J., Kerrigan, J., and Lawlor, J., concurred.

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THE COURT.

Petitioner seeks the release of John Franhovitch on habeas corpus. Frankovitch was convicted of selling liquor in violation of the Wright Act (Stats. 1921, p. 79), “and judgment was passed upon him to this effect: that he, the said John Frankovitch, was to pay a fine of $500.00 or be confined in the City Jail for the period of six months upon his failure to pay said fine.” On February 13, 1923, Frankovitch notified the trial court that he was unable to pay the fine or any part thereof, whereupon he was committed to the county jail for the period of six months. The Volstead Act (41 Stat. 305) provides that for the first offense the person who sells liquor shall be fined not more than a thousand dollars, or suffer imprisonment not exceeding six months. It is claimed that this provision, adopted by our Wright Act, does not justify the alternative judgment imposed upon Frankovitch, because such judgment, in effect, provides for imprisonment for the nonpayment of the fine. [1] On the other hand, we think the judgment, properly construed, is one imposing a sentence of imprisonment for six months, but gives the party convicted the opportunity of escaping such punishment by the payment of a fine. Having failed to pay the fine he is in no position to complain of the imprisonment.

Writ denied.

Wilbur, C. J., Waste, J., Myers, J., Lennon, J., Seawell, J., Kerrigan, J., and Lawlor, J., concurred.

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213 P. 39, 190 Cal. 440, 1923 Cal. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-frankovitch-cal-1923.

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