
    Ex Parte Avila.
    Applicatiow for a writ of Habeas Corpus.
    No. 23.
    Decided October 21, 1903.
    Pine. — Subsidiary Imprisonment. — A judgment sentencing the accused to three months of imprisonment in jail and to pay a fine of two hundred dollars, or, in default of said payment, to undergo one year and thirty-four days of additional imprisonment is legal as to the principal sentence and to the corresponding cumulative sentence prescribed by law.
    STATEMENT OE THE CASE.
    On the 18th of July, 1903, José Avila was sentenced for the offense of disturbing the public peace, to three months imprisonment in jail and to pay a fine of two hundred dollars, or, in default of said payment, to undergo one year and thirty-four days of additional imprisonment. Having served the principal sentence of three months, and when he had already begun to undergo the subsidiary imprisonment for non-payment of the fine, he presented a petition for a writ of habeas corpus to the Supreme Court, alleging that' such imprisonment was illegal, because the maximum imprisonment to which he could have been sentenced being three months, according to section 368 of the Penal Code, the additional or cumulative punishment imposed for nonpayment of the fine, cannot exceed this limit, according to section 322 of the Code of Criminal Procedure.
    
      Mr. Falcón, for petitioner.
    
      Mr. del Toro, Fiscal, for the People.
   Opinion of the Court.

The petitioner, José Avila Alicea, is not at the present time illegally deprived of his liberty, inasmuch as he has not yet served the corresponding subsidiary term of imprisonment prescribed by law. The writ applied for by the prisoner, José Avila Alicea, is denied and he is remanded to the jail where he was serving his sentence, under the custody of said penal institution, with costs against the petitioner.

Chief Justice Quiñones and Justices Hernández, Sulzba-cher and MacLeary, concurred.

Mr. Justice Pigueras did not sit at the hearing of this case.  