Brown v. State , 115 Ala. 74 ( 1896 )

HEAD, J.

There is no merit in the exception reserved by the appellant to the admission of the evidence touching the name of the owner of the property, the subject of the crime. The alleged owner — a body corporate — was originally chartered by the name of ‘ ‘Tennessee Coal and Railway Company," but afterwards, and before the indictment in this case was found, the charter was amended by changing the name to “Tennessee Coal, Iron and Railroad Company." This latter is the name of the owner as charged in the indictment. The objection to the evidence was, that there was a variance between it and the indictment. Most clearly the objection was not well taken.

An objection to the original charter, separate and apart from the amendment which was offered, in connection with it, cannot properly be considered.

•In pursuance of law, the appellant was sentenced, on conviction, to perform hard labor for the county for twelve months, as punishment for the offense committed. In addition to this, he was sentenced to perform hard labor for the county for 231 days to pay the costs of the prosecution. This latter sentence was in conformity to section 4504 of the Code, which authorizes the imposition of such hard labor for costs, in cases of felony, for a period not exceeding fifteen months.

The question is now raised whether this provision of the Code was altered, and the authorized period of hard labor for costs reduced to a point below the period for which appellant was sentenced, by subsequent acts of the legislature to which we are referred.

The first of these acts was a general revision of what is known as the Convict System of this State, and was enacted February 14, 1893. — Acts 1892-93, p. 194. Its title is, ‘ ‘An act to create a new convict system for the State of Alabama, and to provide for the government, discipline and maintenance of all'convicts in the State of Alabama.” Section 54 of this act contains, among others, the following provision: “Whenever any convict is sentenced by the court, and required to do hard labor for the county, an additional sentence, not to exceed six months, in any one case, for the payment of the costs of his conviction, maybe imposed,” &c. Thus, if this provision was enforceable, the maximum term of hard labor for costs was reduced to six months.

At the session of 1894-95, there was, .by an act approved February 18, 1895, (Acts, 1894-95, p. 849) another revision of the convict system. The title of this act was, “An act to regulate the management of State and county convicts.” Section 98 introduced substantially the same provision as that copied above from the act of 1893, except that it fixed the maximum term of hard labor for costs at ten, instead of six months.

The question is, whether these acts, in so far as they attempt'to prescribe, by tlie provisions referred to, what sentence the court shall impose, in reference to1 costs; are not offensive to section 2, Article IV,- of the constitution, which ordains thatEach law shall contain but one subject, which shall bé -clearly expressed in its title,” &c. ■ •

The principle, declared in Ex parte Gayles, 108 Ala. 514, leaves no room for discussion or doubt upon this question. . The titles to these acts clearly indicate nothing more than a purpose to provide for modes and means of executing the sentences imposed upon convicts by the courts. They give no indication, whatever, of a purpose to go behind the sentence and prescribe what sentence the court shall impose. The functions indicate'd by these titles are purely executive , or ministerial, taking effect after the ministerial sentences have been pronounced. ■

: The question is different from that which came under our consideration in White v. Bargin, 113 Ala. 170. In that-case the provisions of the first of said acts .then under review, tlie1 constitutionality of which was upheld as - shówn by the opinion of Justice McClellan, had relation entirely to acts to be performed in reference to the ‘.‘government, discipline and maintenance” of the convict, by ministerial officers, or processes, after he became a convict, within the sense of the act, by virtue of his conviction, in the court of trial, and the imposition of the 'sentence, which the law requires the cou'rt to impose as a consequence of such conviction. Until these .judicial requirements are pei’formed, the persoxx is not a convict withixi the meaning of the law providing what shall be done with, or in reference to convicts, viz., the coxxvict system. That system, necessarily, has relation alone to the carrying ixito execution of the sentexices of the court by which the person becomes a convict and thereby subject to its provisions. In order to establish his statixs as a convict, the court of trial is reqxxired by law, after coxxviction by the jury (or by the court where a jury is dispensed, with), to impose, by its sentence, the punishment which the law denouncing the offexxse axxnexes to the crime; axxd further, if the sentexxce is to hax'd labor for the county, and the costs are not presexitly paid, .or judgment confessed therefor, to impose the further sentence of hard labor for a limited term, for the payment' of the costs 'of the conviction — the term' being regulated by the amount of the costs, and not to exceed a-specified maximum period. This last named- sentence most- clearly enters into, and forms a part of the-judicial disposition of the prisoner creating and defining him as one amenable to the regulations provided by law for putting the sentences into-execution. When sentence to hard labor is pronounced, the court pronouncing it, must go further and judicially ascertain that the costs have not been- paid, when such is 'the' case,-, and so declare upon its records, and (judgment therefor not being confessed) pronounce the additional sentence provided by law. What this sentence shall be — whether it shall be limited to six, ten or eighteen months — has, manifestly, no more natural or germane relation to a system of law’s providing for the “government, discipline and maintenance ” of convicts, than has the sentence which the law requires the court to pronounce upon the prisoner as absolute punishment for the crime. The additional hard labor imposed for costs, as wre hold in Caldwell v. State, 55 Ala. 133, and Morgan v. State, 47 Ala. 36, is precisely of the same nature, and inspired by the same motive or purpose as the absolute punishment prescribed by law, to-wit, the purpose of punishment for crime. It .is for this reason that the constitutional inhibition of imprisonment for debt does not apply to the imposition of' such additional hard labor; and for the same reason, that such imposition must be in pursuance of law in force at the time of the commission of the offense, or, at least, under a law which does not increase the burden beyond that imposed by the law in force at the commission of the offense.—Caldwell v. State, supra. Such a statute, when applied to past offenses, is ex post facto. ,

These observations are intended to illustrate and make clearer the principle we lay down, that there is no distinction, in respect of the question we now have under consideration, between the two punishments. If an act to establish a convict system for the State and to provide for the government, discipline and maintenance’of all convicts in the State ; or to regulate the management of State and county convicts, cannot, in view of the constitutional provision referred to, legally include a provision fixing the absolute punishment for crime (as most undoubtedly it cannot), there is no conceivable reason why it can include a provision fixing the other punishment. We held in Ex parte Gayles, 108 Ala. 514, mpra, that a change in the mode of punishment -from imprisonment in the penitentiary to hard labor for the county, was not included in the title of said act of February 18, 1895, within the meaning of the constitution.

We hold that these acts were ineffectual to change section 4504 of the Code, in the respect discussed, and that appellant was properly sentenced under that section.

Affirmed.

, Brickell, C. J., dissenting.