I concur in the judgment, and in the opinion of Mr. Justice Works. But as it may be thought that some things were decided in Ex parte Arras, 78 Cal. 304, which were not before the court in that case, I desire to express my doubt whether a defendant can he imprisoned, even in a county jail, beyond the maximum term of imprisonment prescribed by the statute as a punishment for the offense of which he has been convicted. A fine is, no doubt, quite a severe additional punishment to one who is able, and can be forced, to pay it; but after a sentence to the full term of imprisonment provided by law for the offense, to then impose a fine of one thousand or five thousand dollars on an impecunious defendant, known to be utterly incapable of raising one thousand cents, for the mere purpose of prolonging his imprisonment beyond the term prescribed by law, seems to me to be a species of legal jugglery not contemplated by the code. When the code provides that the punishment of imprisonment for a certain offense shall be for a term, for instance, “not exceeding one year,” does it mean that a court *522may indirectly imprison him for two, or five, or twenty years? The asserted power to do this is based on section 1205 of the Penal Code by applying to it the most extreme rule of literal construction. The section is as follows: “A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied/’-—■ at a certain rate per day. Now, it must be remembered that the judgment prescribed for many offenses is imprisonment or fine, or both. There are, therefore, three different kinds of judgments,—one imposing imprisonment alone, another imposing a fine alone, and a third imposing both imprisonment and fine. And is it not a fair construction of the words used in section 1205, “ a judgment that the defendant pay a fine,” — construing it as a penal statute,—to bold that they constitute a distinguishing description or definition of a certain kind of judgment, viz., a judgment to "pay a fine,” that is, a judgment which imposes a fine alone, and not one which, in addition to a definite term of imprisonment, also imposes a fine? Such a construction would bring the section in harmony with all the other sections of the code on the subject, and with the evident purpose of the legislature. When the legislature says that imprisonment in punishment of a certain offense shall not exceed a certain term, it ought not to be held that a court can imprison one beyond that time, unless such holding be imperative. Under the construction herein intimated, a court could imprison a defendant for the maximum term prescribed by law, and could, in addition, if it thought proper, impose a fine, to be collected, if possible, by execution; but it could not, under the guise of a fine, extend the maximum term of the imprisonment almost indefinitely. Or if a proper case for leniency should arise, when it seemed probable that the defendant could pay ' a fine, and that it would be better for both him and the public that he should expiate his offense in that way, a *523fine alone could be imposed, and enforced by imprisonment, at least to the extent of the maximum term. And it seems to me that the most savage court should be satisfied with this power,—at least until the legislature chooses to enlarge it
I am aware that this court formerly, on one or two occasions, expressed views different from those above stated, and I am as loth as any one to depart from a settled rule; but I think that the question here discusssd can hardly be considered as definitely settled. It seems to me that in recent years the practice of imprisonment for fines has resulted, in some instances, in great oppression, and in imposing on defendants convicted of only trivial offenses extreme and cruel terms of imprisonment against both- the letter and spirit of the law. I think, therefore, that on a proper occasion the question here presented should, at least, be opened and reconsidered.
Paterson, J., concurred in the opinion of McFarland, J.