Reports of Cases Determined in the District Courts of Appeal of the State of California (Volume 8)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1909. Excerpt: ... of the act, and which is to be punished under section 7 thereof, and cannot affect those provisions, and sections 3 and 4 may be rejected so far as the rights of petitioner for the writ of habeas corpus are concerned. Id.--Effect Of Section 7--Minimum Punishment--Maximum Wot Fixed--Excessivs Fines--Presumption.--Section 7 of the act cannot be deemed unconstitutional, as imposing excessive fines in terms; and it cannot be presumed from the mere fact that a minimum penalty is fixed, without imposing any maximum, that the court, in case of a conviction, will violate the constitution by inflicting a penalty wholly disproportionate to the offense charged. PETITION for writ of habeas corpus to the Sheriff of San Diego County. The facts are stated in the opinion of the court L. E. Dadmun, for Petitioner. Lewis R. Kirby, District Attorney, H. S. Utley, Assistant District Attorney, and Wright, Schoonover & Winnek, for Respondent. SHAW, J.--It appears that petitioner is committed to jail under an information filed by the district attorney of San Diego county charging him with the crime of selling a preparation of opium, the purchaser thereof not having a prescription therefor as required by section 8 of An Act to regulate the sale of poisons in the State of California and providing a penalty for the violation thereof, approved March 6, 1907. (Stats. 1907, p. 124.) Petitioner contends that said act is unconstitutional, and hence the sale of the opium compound could not constitute a public offense. Section 8 of the act in question provides: The sale of morphine, codeine heroin, opium and cocaine, their salts, compounds or preparations is hereby prohibited, unless upon the prescription of a physician, dentist, or veterinary surgeon, licensed to practice in this sta...