36 Ga. App. 341 | Ga. Ct. App. | 1927
W. L. Dickson entered a plea of guilty to an indictment charging a misdemeanor; thereupon the court entered the following judgment and sentence: “W. L. Dickson is this day sentenced to work in the chain-gang, or at the State farm, for a period of twelve months, the time to be computed from his reception therein. However, after he serves six months of said period, the latter six months of said period is suspended, provided $1,000 as herein specified has been paid at the expiration of said six months’ sentence. However, it is hereby ordered that said defendant is herewith given leave to serve the aforesaid sentence out
The defendant having refused to pay the fine except upon the terms and conditions of the tender made by him, an execution was issued therefor in pursuance of the sentence and was levied on property of the defendant. Thereupon he filed an affidavit of illegality, in which he set up, that, under the provisions of the sentence, he had an election to pay the fine and serve the last six months of the sentence on probation, or, in lieu of such payment, to execute this part of the sentence, as he did the previous part, in actual servitude; that he had served the twelve months except about
As has been seen above, the Supreme Court adjudicated that the prisoner was bound to serve the first six months of his sentence in the chain-gang or at the -State farm, but that he might serve the last six months on probation, “provided the defendant on or before the expiration of the said six months shall have paid the fine of one thousand dollars.” The question to be determined in the present case is whether the defendant could elect either to pay the fine or in lieu thereof to actually serve the last six months of his sentence. The court below held that the payment of the fine was mandatory; and with this construction of the sentence we agree. The court had the power to pass upon the defendant a sentence of twelve months in the chain-gang, and also to impose a fine of not exceeding $1,000. Penal Code (1910), § 1065. The court, having the power to do both, could do less than both, and could do so without giving the defendant any election as to paying or refusing to pay the fine. In our opinion, the judgment under construction said to the defendant that he should in any event do actual service in the chain-gang or at the State farm for six months; also that he should pay a fine of $1,000, the State’s right to demand which was without condition; but that upon the payment of this fine, whether made voluntarily or involuntarily, he might, upon certain other conditions, pertaining to his good behavior, etc., serve on probation the last six months of his sentence. He had no election as between paying the fine and actually serving the last half of his sentence. Otherwise it would have been idle for the court to render judgment for the amount of the fine and to order that execution issue therefor. This is not to give effect merely to that clause of the sentence to which we have just alluded. We have construed the sentence in its entirety, and we think, as stated above, that it was the intention of the court, in passing the sentence, to impose two penalties unconditionally, one as to the service of the first six months, and the other as to payment of the fine; and that
Where one is convicted of a misdemeanor, and the judgment is unconditional that he pay a fine, the judge, if payment is refused, has the power to order the clerk of the court to issue an execution against the property of the defendant, to enforce collection. McMeekin v. State, 48 Ga. 335 (1).
From what has been said, the affidavit of illegality was properly stricken.
Judgment affirmed.