Ex parte State , 87 Ala. 46 ( 1888 )

CLOPTON, J.

It appears from the return of the sheriff to the writ of habeas corpus, that the petitioner is retained under a 7nittimus, following a judgment of conviction on a prosecution for vagrancy, rendered by a justice of the peace. The justice assessed a fine of twenty dollars; and the mittimus commands the officer to take the petitioner, in default of the payment of the fine and costs, “into custody, and detain him until he performs twenty days hard labor for the county for said fine, and sixty days for payment of said costs, subject to the order of the Board of Bevenue.” On the hearing of the application, the judge of probate ordered the petitioner to be discharged, on the ground that the justice had exceeded his jurisdiction in the sentence and judgment. This proceeding is an application for a writ of prohibition, or other proper remedial writ, to vacate and annul the order of discharge, and to prevent its enforcement.

The authority of the justice to impose additional hard labor for the payment of costs is claimed under section 4504 of the Code of 1886. The corresponding section (4731) of the Code of 1876 read as follows: “If, on conviction before the County, Circuit or City Court, judgment is rendered against the accused, that he perform hard labor for the county, and if the costs are not presently paid, then the court may impose additional hard labor for the county, for a term sufficient to cover all costs and officers’ fees, allowing not exceeding forty cents per diem, for the additional labor imposed.” In Ex parte McKivett, 55 Ala. 236, it was held, that this statute conferred no authority on a justice of the peace to sentence to hard labor for the county for the payment of costs, the authority being confined by the words of the statute to the County, Circuit and City Courts. The section was amended by the act of February 26, 1881, by prescribing a limit to the term for which additional hard labor may be imposed, reducing the rate to thirty cents per diem, and adding other provisions not material in this case. The section as amended is incorporated in the Code of 1886 as section 4504, except that the words, befare the County, Circuit or City Court, are omitted. The argument is, that by the omission of these words, in view of the judicial construction previously placed upon the statute, the legislature intended a change, and that the effect is to confer on all courts, having jurisdiction to try and convict of criminal offenses, authority to impose additional hard labor for the county for costs. The general rule is, that a material change in the phraseology of a subsequent statute, revising a pre-existing statute, indicates a changed legislative intent. The force of the argument must be admitted; and it may be that it was the intent to extend such authority to all courts having criminal jurisdiction in cases to which the section is applicable. Conceding this, there yet lies behind it the question, whether the case of the petitioner falls within the operation of section 4504.

There are other sections of the Code relating to the same subject. Section 4502 provides: “When a fine is assessed, the court may allow the defendant to confess judgment, with good and sufficient sureties, for the fines and costs.” And section 4503 declares: “If the fine and costs are not paid, or a judgment confessed according to the provisions of the preceding section, the defendant must either be imprisoned in the county jail, or, at the discretion of the court, sentenced to hard labor for the county, as followsand the section then proceeds to specify the terms of days, for which the defendant may be imprisoned or sentenced to hard .labor, regulated by, and increased in proportion to the amount of the fine.' The statutes composing sections 4503 and 4504, except as amended, have co-existed since 1866, and are embodied in the same article of the same chapter of the present Code. They should, therefore, be read as continuous sections of the same act, and so construed as to harmonize each with the other. A separate and distinct field should be assigned to each, in which its provisions may operate, without colliding with any of 'the provisions of the other, or covering the same space.

Legal punishments are defined by the statute as follows: “Fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the State, and death by hanging.” — -Code, 1886, § 4492. Different crimes are differently punished. Some misdemeanors are punishable by fine only; others by fine, to which imprisonment in the county jail, or hard labor for the county, may be added; and in all cases in which the imprisonment or sentence to hard labor is for twelve months or less, the' defendant must be sentenced to imprisonment in the county jail, or to hard labor for the county. Chapter ten of the Code, which contains all the sections herein above referred to, relates to the subject of punishment, and forms a complete system, constructed in view of, and in relation to the different kinds and degrees of punishment affixed by the statutes to different crimes. Sections 4502 and 4503 relate specially and particularly to fines, and apply and govern when, on conviction, the accused is fined only — when hard labor for the county can not be by law, or is not, when discretionary with the court, superadded. Section 4503 does not protide punishment which must or may be imposed in the first instance, but a substituted punishment, which must be imposed only when there is a failure to pay the fine and costs, or confess judgment therefor, as allowed by section 4502. In the imposition of such substituted punishment, the court has no authority to exceed the term of imprisonment or hard labor, for the fine and costs, or either of them, expressly fixed by the statute.

Section 4504 has another and different field of operation. By its terms, authority to impose additional hard labor for the cogts is confined to cases where, on conviction, judgment is rendered that the accused perform hard labor for the county, and the costs are not presently paid; that is, where the accused is convicted of a crime, to which the special statute, in regard to the particular offense, affixes the punishment of hard labor for the county as one of the authorized modes of punishment; and the court may render judgment that the defendant perform hard labor for the county, as the primary, not the alternative punishment authorized by section 4503. To illustrate : We have said that several statutes affix, as punishment on conviction of certain misdemeanors, that the defendant must be fined, and may be imprisoned in the county jail, or sentenced to hard labor for the county not exceeding a specified term; in such case, if the court should render judgment that the accused be fined only, or, in addition, be imprisoned in the county jail, section 4504 confers no authority to impose hard labor for the costs. Under section 4503, though the defendant may pay the fine, should he fail or refuse to pay or confess judgment for the costs, he may, nevertheless, be imprisoned or sentenced to hard labor for the term of days specified in the section. — Morgan v. State, 47 Ala. 34. But the term of days for which he may be sentenced must, under the statute, be determined by the amount of the fine, and not the costs. To hold that, in such case, additional hard labor for the county may be imposed for the cost under section 4504, would be tantamount to an imposition of double punishment.

The present case affords a fair illustration of our views. The punishment for vagrancy, the offense of which petitioner was convicted, is, that the defendant, “on conviction for the first offense, be fined, not less than ten, nor more than fifty dollars; and on a second conviction, within six months after the first, must be fined not less than fifty, nor more than one hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months.” — Code, 1886, § 4047. The petitioner was convicted for the first offense, and fined twenty dollars. Under section 4503, failing to pay or confess judgment for the fine and costs, the petitioner could and should have been sentenced to imprisonment in the county jail, or to hard labor for the county, for ten days; but beyond this, the justice could not sentence him, either for the fine or costs. Should he be convicted a second time, within six months after the first, and fined, and also sentenced to hard labor for the county, then, under section 4504, the court could impose additional hard labor for costs. A sentence to hard labor, according to the provisions of section 4503, does not constitute a basis for the imposition of additional hard, labor for the costs under section 4504. The latter was not designed to be supplemental to the former section. By this construction, each has a distinct and independent sphere of operation, and distinct purposes. Our conclusion is, that the justice, having assessed a fine only, had no authority to impose the additional hard labor for the county for the costs.

But the justice also exceeded his authority by imposing hard labor for twenty days for the fine. The amount of the fine assessed being twenty dollars, the petitioner could not, under the statute, be sentenced to hard labor for the county for a longer term than ten days. It is contended, however, that this is an error or irregularity for which he should not be discharged on habeas corpus; and we are referred, as sustaining this position, to Ex parte Simmons, 62 Ala. 416; Ex parte Hubbard, 65 Ala. 473, and Ex parte Herrington, at the present term; 5 So. Rep. 831. When the defendant is retained by virtue of process from a court having jurisdiction of the subject-matter, habeas corpus is not an appropriate mode to correct mere errors or irregularities in the sentence and judgment. To justify a discharge, the process must not be authorized by any provision of the law. Illegality, usurpation, or excess of jurisdiction is essential. This is also the statutory rule. — Code, 1886, § 4785. In each of the cases cited by counsel, the error or irregularity intervened in a matter which the court had jurisdiction to hear and determine. In respect to the term of hard labor to which the petitioner could be sentenced, nothing rested in the discretion or judgment of the justice. He had but to declare the term positively and absolutely fixed by the statute. The informality of the mittimus, in commanding the jailor to detain petitioner until he performed the hard labor to which he was sentenced, may be considered an irregularity, which of itself would not authorize his discharge. That this sentence to twenty days hard labor for the county for the fine, and sixty days for the costs, is in excess of the jurisdiction of the justice, was expressly decided in the analogous case of Ex parte McKivett, supra, where it is said: “When the justice passed beyond the term of ten days as a term of hard labor for the county, he exceeded his jurisdiction. The sentence is consequently void, and the mittimus expressing it as a cause o£ detention is also void.” The same principle was asserted and sustained in the subsequent cases of Ex parte City Council of Montgomery, 79 Ala. 275; and Ex parte Mayor of Anniston, 84 Ala. 21. Had the justice sentenced the petitioner to ten days’ hard labor for the fine, and sixty days for the costs, we should have regarded the latter part of the sentence only as void, and the petitioner would have been required to work out the ten days before entitled to a discharge. But, the sentence being for twenty days hard labor for the fine, and an additional term for the costs, the mittimios is unauthorized by any provision of the law, and is a nullity.

Prohibition denied.