Abram v. Maples

10 Ga. App. 137 | Ga. Ct. App. | 1911

Hill, C. J.

(After stating the foregoing facts.)

1. We think the court erred in not discharging the convict. We are not disposed to be severely technical, or to require strict compliance with mere formal procedure, when the personal liberty of a citizen is concerned. The question, and the only one, to be determined, is: Is the custody of Charlie Abram, under the admitted facts of this case, legal? It is immaterial that the warden held his position under the prison commission of Georgia, and that neither he nor the prison commission had been given any notice that the fine imposed by the judge had been tendered to the sheriff. The validity of this custody is to be tested by the terms of the sentence imposed upon Charlie Abram, and whether he had complied with its terms; and to test this question it was not necessary for the prison commission or the warden to receive any notice of an effort made by the convict to comply with the terms of the sentence; nor does it matter whether or not the sheriff was, strictly speaking, the officer to whom the tender should have been made and who should have received the fine. We think, however, he was such officer. It is a general practice of sheriffs of this State to collect fines imposed in criminal cases. They are bonded officers of the State, and while it may not be expressly within their duties, in practice it is generally performed by them, and in this case the sheriff states that he had collected the fines imposed in the city court.

2. It is admitted that the tender of this fine was made by the agent of the petitioner and Charlie Abram, the convict, seven days after the fine had been imposed, and this tender was twice repeated a few days thereafter, and the fine was every time refused by the sheriff. The Penal Code (1910), § 1111, provides that “every fine imposed by the court under the authority of this code shall be paid immediately, or within such reasonable time as the court may grant.” In the present case the court imposed a fine in the alternative, and gave to the defendant the privilege of paying this fine, including all costs, at any time after entering upon his labor on the public works of the county. Where the courts have a right to impose a fine as a part of the sentence, we think they have also a right to grant to the defendant the privilege of paying it at any time during his period of confinement under the sentence, and the payment thereof should operate as a discharge from further custody. This is a privilege in favor of liberty, and should be left to the discretion of the trial court. Now, in this case the judge who imposed the sentence testified to the effect that it was not his intention to give such an extended privilege to the defendant in reference to the payment of the fine; that he meant to give only a reasonable time in which to pay it.

We do not think that the testimony of the judge on this point was relevant or material. It certainly could not operate to change the sentence, which was unambiguous. It was the duty of the judge, in the exercise of his discretion, to prescribe at least a reasonable time within which to pay the fine; 'and even if we disregard the time which he did actually prescribe for that purpose, the law itself would give to the defendant a reasonable time in which to pay the fine, and would declare what would be a reasonable time in each particular case, under the evidence. Dunaway v. Hodge, 127 Ga. 690 (55 S. E. 483). In that case the Supreme Court held that 15 days after a fine had been imposed was a reasonable time in which to make a legal tender in payment of the fine and costs, and that it should have been accepted and the prisoner discharged. In the case of Broomhead v. Chisolm, 47 Ga. 393, the court decided that the better practice, in imposing a sentence with the alternative of a fine, would be for the judge to fix some reasonable time in which the prisoner might pay the fine, and that, if this was not done, the prisoner would nevertheless be entitled, under the law, to a reasonable time in which to pay it. In the case above mentioned the sentence was imposed on March 12th, and on April 2d thereafter the tender of payment of the fine was made, and the court held that that was a reasonable time. Here the undisputed evidence is that the tender of .the fine was made to the sheriff the first time within seven days after the imposition of the sentence. Certainly this was a reasonable time.

The material facts in this case, in our opinion, are fully controlled by the decisions of the Supreme Court in the eases of Dunaway v. Hodge and Broomhead v. Chisolm, supra; and, under the law as there decided, this court reverses the judgment of the lower court, with direction that Charlie Abram be permitted, by himself or any one acting for him, to pay the fine to the sheriff of the county of Mitchell, or other officer authorized to receive it, and that upon such payment, and notice thereof given to respondent, the warden who has him in custody shall discharge him from custody; otherwise, that he continue to hold in his custody the said Abram. Judgment reversed, with direction.