Bowen v. State , 98 Ala. 83 ( 1893 )

COLEMAN, J.

Tbe defendant was convicted of tbe offense of carrying a pistol concealed about bis person. After conviction “be offered to confess judgment for tbe fine and cost, excepting from sucb confession tbe cost incurred on bebalf of tbe defendant,” and tbis being refused, tbe defendant “offered to confess a judgment for tbe fine and cost, except tbe witness fees incurred on bebalf of tbe defendant,” and tbis was denied by tbe court. We bave stated the exceptions as they appear in tbe record of tbe case. As thus stated there was no error in tbe ruling of tbe court. Tbe statute does not allow tbe defendant alone to confess judgment. It says section 4502, “When a fine is assessed, tbe court may allow tbe defendant to confess judgment with good and sufficient sureties, for tbe fine and cost.”

Section 4504, provides that on conviction, “if tbe cost are not presently paid, or judgment confessed therefor, as provided by law, the court may impose additional bard labor,” &c. The bill of exceptions fails to show that the defendant offered to confess judgment with “good and sufficient sureties,” or as “provided by lazo,” and without tbis offer, tbe court was under no legal duty to take tbe confession of tbe defendant.

Tbe word “cost” for which a person convicted may be sentenced to bard labor has been judicially declared. It includes all costs, including officer’s fees incurred in bebalf of tbe State. It does not include fees due witnesses summoned on bebalf of tbe defendant or cost incurred by him in making bis defense.—Bradley v. State, 69 Ala. 318. It is not tbe policy of tbe law to impose unnecessary burdens, in tbe matter of cost upon those who may bave been convicted. Tbe penalty proper for tbe offense is tbe fine, fixed by tbe statute, just as in case of felony tbe term of impris-eminent is fixed by law. If tbe defendant can pay tbe cost or any part of it, at tbe time of bis Conviction, or any time afterwards before tbe term of bis sentence for tbe cost bas expired, be is at liberty to do so, and to tbe extent of tbe payment made by bim, it is a satisfaction of tbe sentence for cost. So a defendant, against whom a fine is assessed, may pay or confess judgment witb proper security for tbe fine, and be sentenced for tbe cost, or be may pay, or confess judgment for tbe cost, and be sentenced for tbe fine. It is tbe duty of tbe court upon conviction for a misdemeanor to allow a confession of judgment witb proper security for sucb part of tbe fine and cost, or either, as tbe defendant is able to make, witb proper security, and impose tbe sentence for bard labor, for sucb part as remains not paid or confessed. Tbe section of tbe Code bas been judicially construed, and tbe construction placed upon it leads to tbis conclusion.—Ex parte Joyce, 88 Ala. 128; Nelson v. State, 46 Ala. 186; Morgan v. State, 47 Ala. 34; Ex parte Long, 87 Ala. 46.

"We find an error in the record which bas not been referred to by counsel, but which, under our statute, requires tbis court to notice, and which must reverse tbe case.

The record no where shows that tbe defendant pleaded to tbe indictment, or that tbe court interposed tbe plea of “not guilty” for bim, or that issue was joined on plea.—Childs v. State, present term, and authorities cited.

Beversed and remanded.