60 So. 321 | Miss. | 1912
delivered the opmion of the court.
In February, 1911, appellant pleaded gulity to an indictment charging Mm with the uMawful sale of intoxicating liquor. At the succeeding term of the court'judgment was entered upon this plea, by which appellant was sentenced to pay a fine of five hundred dollars and to Mnety days in the county jail. TMs judgment further provides “that the payment of tMee hundred dollars of said fine and of Mnety days’ jail sentence be suspended during good behavior of the said defendant, and that he stand committed in the hands of the sheriff until the remainder of said fine, two hundred dollars, and costs of tMs court, be paid in full.” At the succeeding term of the court the district attorney filed a motion requesting the court to enter ah order directing the execution of the suspended portion of this sentence, and alleging that since the last term of the court defendant had engaged in the uMawfM sale of intoxicating liquor, wMeh allegation was supported by proof. TMs motion was by the court sustained, and a judgment entered directing the execution of
This appeal.was taken before the cases of Fuller v. State, 100 Miss. 811, 57 South. 806, and Hoggett v. State, 57 South. 811, were decided, wherein the power of a court to suspend the imposition and execution of a sentence was fully considered and determined. Appellant does not request us to review these decisions, but presents two questions not involved therein.
Section 1516 of the Code provides: “In ease not capital the court shall order the convict to stand committed until the fine, costs and jail fees be paid.” The original judgment entered upon appellant’s plea of guilty does not direct that he stand committed until the full amount of the fine imposed should be.paid, but “until the remainder of said fine, two hundred dollars and costs of this court, be paid.” Appellant contends that he cannot now be imprisoned in order to coerce the payment of that portion of the'fine, the collection of which was ordered to be suspended, because of the failure of the court to include in its judgment the direction that he be committed therefor. The failure of the court to comply with this statute does not relieve the convict from imprisonment on failure to pay a fine. Under section 837 of the Code, brought forward in chapter 109, Laws 1908, p. 105, imprisonment follows the failure to pay a fine without an order of the court to that effect. This section deals, not with what the court shall provide in its order, but with what shall be done with the convict after sentence has been imposed.
Again, appellant contends that the failure of the court to direct that he stand committed until the whole of the fine imposed has been paid means that the court never intended that he should pay the remainder thereof, and in fact intended to impose only a fine of two hundred dollars.
Section 1561 contemplates that the bond therein provided for shall be required as part of the judgment imposing the sentence upon the convict for the crime committed. After the close of the term at which the judgment was rendered, the court was without power to amend its judgment by adding this requirement thereto. Consequently, that portion of the judgment entered at the subsequent term requiring appellant to execute this bond was void. The remainder of the judgment directing the execution of the sentence is valid, for the reason that, wherever the sentence of a court imposed at a former term has not been executed, it has the power, though it may not be necessary, to order that it be executed.
The judgment of the court below is reversed in so far as it directs appellant to execute a bond to keep the peace and be of good behavior, and that portion thereof will be held for naught. In- all other respects it is affirmed.
Affirmed.