Ex parte Alexander, 39 Mo. App. 108

Ex parte Alexander

39 Mo. App. 108 | Mo. Ct. App. | 1890

Biggs, J.,

delivered the opinion of tlie court.

This is a proceeding by habeas Corpus in wliicli Samuel Alexander alleges that be is illegally restrained of Ms liberty in the jail of the city of St. Louis by the jailor thereof.,

It appears from the pleadings, and is admitted to be true, that the petitioner was convicted under two separate informations, filed by the prosecuting officer in the St. Louis Court of Criminal Correction, in which he was charged with selling lottery tickets in violation of the law of the state. He was fined twenty-five dollars in each case, and it was also adjudged and ordered by the court that he should stand committed until the fines and costs were paid. Writs of commitment were issued, and, in obedience to the orders therein, the sheriff of the city of St. Louis arrested, the petitioner, and placed him in the county jail in custody of the jailor.

The petitioner claims that the order of judgment of the St. Louis Court of Criminal Correction committing him to jail, in default of the payment by him of the *109fines thus imposed and the costs of the prosecutions, was unauthorized and not warranted by the statute, and that, for this reason, his incarceration in the city jail is illegal.

The petitioner was tried and convicted under section 1567 of the Revised Statutes of 1879, which is as follows : “Any person who shall sell or expose to sale, or cause to be sold or exposed to sale * * * any lottery ticket * * * within this state * * * and shall be convicted thereof in any court of competent jurisdiction, shall, for each and every such offense, forfeit and pay a sum not exceeding one thousand dollars.”

It is conceded that the St. Louis Court of Criminal Correction had jurisdiction of the offense with which the petitioner was charged and of which .he was convicted, and that the penalty imposed by the statute was properly recoverable under an indictment or information ; but the power of the court to enforce its judgment by committing the prisoner to jail, in default of payment by him, is denied.

The argument advanced by the petitioner is that the word “forfeit,” as used in this section, is not synonymous with the word “fine,” as used iii other parts of the code of criminal procedure, and that, for that reason, there can be no legal imprisonment for the non-payment of a forfeiture under the provisions of section 1957 of the Revised Statutes of 1879. The meaning of the word, forfeit or forfeiture, has to be determined by the connection in which they are used. When used in civil proceedings and in connection with the enforcement of civil rights, they contemplate an ordinary civil judgment, which need not even be penal in its character, as both the supreme court and this court have decided. Edwards v. Brown, 67 Mo. 377, and Greene County v. Wilhite, 29 Mo. App. 466. But, when used in a criminal law to denote a punishment for a statutory crime, the meaning of the word is equivalent *110to fine. This has been substantially decided in Commonwealth v. Avery, 14 Bush (Ky.) 638 ; by this court in State v. Sellner, 17 Mo. App. 39, and by the supreme court in State v. Mumford, 73 Mo. 647, where the forfeiture imposed by the statute is spoken'of as a fine. It will also be noted that section 1674 of the Revised Statutes of 1879, which provides for the recovery of fines, penalties and forfeitures by indictment, treats them all as liabilities of the same character, enforceable by the same criminal process.

It results that the St. Louis Court of Criminal Correction, in sentencing the prisoner, has not exceeded its jurisdiction either as. to matter, sum, place or person, and that its process was authorized by law.

All the judges • concurring, it is ordered that the petitioner be remanded to custody.