68 Colo. 110 | Colo. | 1920
delivered the opinion of the court.
' This was an action by plaintiff in error against defendant in error under sec. 3634, Rev. Stat. 1908, for damages in the sum of $705.00 for sale, under execution, of certain of plaintiff’s property claimed by him as exempt. The amount prayed for is three times the value of the property so sold. The execution in question was issued on a judgment against plaintiff, and in favor of the people, for the costs of a certain prosecution in which plaintiff was convicted of burglary. The judgment in the instant case was entered on the pleadings, on defendant’s motion. Allegations which, under the motion must be taken as true; bring
Burke, J., after stating the facts as above.
The sole question for our consideration is “Does said see. 3628, have any application to an execution issued in favor of the people to satisfy a judgment of fine or costs in a criminal case?”
Our statute governing executions in criminal cases provides: “The property, real and personal, of evefy persoii who shall be convicted of any of the offenses punished by this chapter shall be bound, and a lien is hereby created on the property, * * * so far as will be sufficient to pay the fine and costs of prosecution * * * which property so levied upon shall be advertised as in civil cases and sold for what it will bring. It shall be no objection to the selling of any property under such execution that the body is in custody for such fine and costs.” Sec. 2009, Rev. Stat. 1908.
We are of the opinion that sec. 3628, Rev. Stat. 1908, exempting certain property from sale under execution, relates solely to civil actions; and that, under the provisions of sec. 2009, Rev. Stat. 1908, relating to executions in criminal cases, all the property of one convicted is liable to seizure thereunder. This conclusion seems to us correct for two reasons.
’ First. Both these sections have come down to us practically unchanged from the time of their first adoption in 1861. Section 3628 appears first as part of an Act concerning judgments and executions, Laws of 1861, p. 264; next as a part of chap. 48, Rev. Stat. 1868; next as a part of chap. 53, Gen. Laws of 1877; next as a part of chap. 60,
Section 2009 appears first as part of “An Act concerning Criminal Jurisprudence”, Laws of 1861, p. 290; next as a part of chap. 22, Rev. Stat. 1868, entitled “Criminal Code”; next as a part of chap. 24, Gen. Laws 1877, entitled “Criminal Code”; next as a part of chap. 25, Gen. Stat. 1883, entitled “Criminal Code”; next as a part of chap. 35, Rev. Stat. 1908, entitled “Crimes”; and no part of any one of said chapters, and no part of said Act of 1861 refers expressly to civil actions.
Statutory provisions contained in Acts or chapters relating entirely to civil actions will not be construed to extend to criminal. Parker v. People, 7 Colo. App. 56, 42 Pac. 172; Van Houton v. People, 22 Colo. 53-55, 43 Pac. 137. '“The provision relied on is found in the Civil Code, which relates alone to procedure in civil actions and by its title is confined to that kind of litigation. It can have no application in criminal cases.” Klink v. People, 16 Colo. 467-469, 27 Pac. 1062.
In the case of Saunders v. People, 63 Colo. 241, 165 Pac. 781, the application of see. 504, Gen. Stat. 1883, to a criminal case was in question. The plaintiff in error had been •convicted in a criminal case in the County Court and judgment for costs entered against her. One of the items of •costs was “jury fees, mileage and per diem, $118.50.” It ■appears that eighteen jurors had been summoned by order ■of court on open venire. Section 504, Gen. Stat. 1883 (which is sec. 1532, Rev. Stat. 1908), provides: “In any action pending before the County Court, either party may have a jury summoned to try the same, by advancing fees for the payment of such jurors, and when judgment shall be rendered in favor of the party demanding a trial by jury, such party shall recover the fees paid by him for such jurors, of the adverse party, and have the amount Thereof taxed as a part of the costs in the case.” This
Second. The only justification for a different application of the foregoing rule would be a reasonably clear legislative intent. Such intent is not only absent in the case before us but the contrary appears. Section 2019, Rev. Stat. 1908, provides: “The Court shall have power, in all cases of conviction under this chapter, when any fine is inflicted, to order as a part of the judgment of the court, that the offender shall be committed to jail, there to remain until such fine and costs are fully paid, or otherwise legally discharged.” It whs the evident purpose of this statute to provide a method of compelling one to pay fine and costs adjudged against him in a criminal case, irrespective of any exemptions. All doubts as to such purpose are removed by section 2012, Rev. Stat. 1908, which provides: “Whenever it shall be made satisfactorily to appear to the
No exemption having been provided in any Act relating expressly to criminal law, and a method having" been provided in our criminal statutes to compel a defendant, by imprisonment, to subject all his property to the payment of a judgment for fine and costs levied against him, we are of the opinion that the exemptions contended for by plaintiff in error do not exist. The judgment is accordingly affirmed.
Garrigues, C. J. and Scott, J. dissent.