In Re Carmignani , 71 Cal. App. 632 ( 1925 )

Petitioner pleaded guilty in the police court of the city of Bakersfield to a charge of having in his possession, in a public place in that city, intoxicating liquor containing more than one-third of one per cent of alcohol by volume, contrary to section 4 of Ordinance No. 165 of that city. He was sentenced to pay a fine of $500 and also to imprisonment in the county jail for a period of 180 days. He paid the fine, but nevertheless was committed to jail pursuant to the terms of his sentence to imprisonment. It seems to be conceded that this is petitioner's first offense against the liquor laws. If, therefore, the ordinance, in so far as it attempts to prescribe penalties for its infraction, is unreasonable and void, petitioner is entitled to his discharge even though the complaint in the police court be sufficient to state an offense under the state law. This is so for the reason that the maximum penalty provided by the statute for the illegal possession of intoxicating liquor is a fine of $500, if it be the first offense. (In re Adams, 61 Cal.App. 239 [214 P. 467].)

[1] We have recently held that the punitive provisions of this ordinance are unreasonable and void for the reason that the penalties prescribed thereby greatly exceed those provided by the Wright Act (Stats. 1921, p. 79) for kindred offenses. (In reSimmons, ante, p. 522 [235 P. 1029].) This leaves no authority for the sentence save such as may be found in the state law; and as that law only authorizes a fine in such a case as this, it follows that the part of the judgment under which petitioner was committed to jail is invalid and void, and that he must be discharged from custody.

Petitioner is discharged.

Works, J., and Craig, J., concurred.