Fuller v. State

83 Miss. 30 | Miss. | 1903

Truly, J.,

delivered the opinion of the court.

Upon perfectly plain proof, appellant was convicted of gambling, under section 1122, Code 1892, and sentenced to pay a fine of $500 and costs. When this sentence was pronounced, the defendant moved the court to enter judgment upon the sentence that, “unless the said fine and all costs be immediately paid, the defendant be confined in the jail twenty days” — in the language, it will be observed, of the last clause of section 1122. This motion was by the court overruled, and thereupon judgment was entered, sentencing defendant to pay said fine and all costs, and providing that he should “stand committed until said fine and costs are paid,” as required by chapter 76, sec. 3, p. 67, Laws 1894. The overruling of this motion by the court, and the order committing the defendant until fine and costs are paid, constitute the main ground upon which counsel for appellant base their argument for reversal. It is contended that section 1122 states two different punishments in the alternative; that one convicted and sentenced to pay fine and costs under that section cannot rightfully be committed as required by the terms of the general, law regulating the collection of fines, but, if said fine and costs be not hnmediately paid, the prisoner must be committed to the county jail for not more than twenty days; that the term of imprisonment is in lieu of the fine and costs imposed, and not an additional penalty for failure to promptly comply with the sentence of the court.

We do not think the statute will bear the construction contended for on behalf of appellant. It does violence to the wording and evident meaning of the section. The two punishments are not stated in the alternative, the imprisonment being plainly an additional penalty to be inflicted upon failure to promptly pay the fine imposed. Note the difference in the ¡shraseology of section 1131, where a substantially similar provision is stated in the alternative. The construction contended for on behalf of appellant, if adopted, would lead inescapably to the conclusion that it was the legislative design to deal more leniently with those convicted of gambling than with any other class of offenders. It would allow the convicted gamester, sentenced to pay a fine of $500 and costs, to secure his release without the outlay of a dollar by spending a few days in idleness in the county jail, while another, convicted of any other misdemeanor known to our law, if unable to pay his fine, no matter how small, would have to work out his penalty at hard labor for a convict contractor. To hold that the imprisonment mentioned in this section is an alternative punishment, and intended to operate as a legal remission of the fine and costs imposed, would produce a condition of affairs anomalous and unprecedented in criminal jurisprudence. It would give the convict the privilege of selecting his own method of punishment. It would be practically granting leave and license to tbe gambler, and then, if convicted, allow bim to deliberately dictate to a court of justice wbat punishment be should bear, and to choose whether it would be less detrimental to his business interests to pay the fine imposed, or to idle away a few days in jail. In the instant case it would grant appellant the option of deciding which penalty he would suffer — a condition of things not in harmony with our system of criminal jurisprudence, where the courts, not the criminals, fix the punishment under the law.

In order to ascertain the legislative intent, we have carefully considered the statute in question in the light of the laws controlling the subject-matter therein treated in force at the date of its enactment, so that, by a knowledge of the state of affairs then existing, we could discover what evil the law was intended to remedy. In practically its present language this provision is first found in the code of 1857. At that date there was no system in force whereby fines imposed as punishment could be collected by the hiring of the convicted misdemeanant. Persons sentenced to pay such fines, were not, as is now the case, by operation of law, committed until fines and costs should be paid. Fines were collected by execution, or by capias ad satisfacien-dum, issued after the adjournment of court; and parties’held under such capias, or even if specially committed by the order of the court, had an easy and speedy method of procuring their release from custody. Under this condition of things, the legislature, by the passage of the provision now under discussion, took away from those convicted of gambling the leniency extended to others convicted of other misdemeanors, by providing that they should immediately pay the fine and costs imposed, and upon failure they were to suffer an additional penalty of a stated term of imprisonment; the legislature, dealing with our citizenship as it then was, evidently believing that the threat of imprisonment in the county jail, no matter how brief •tbe term, would be sufficient to insure tbe immediate payment of any fine imposed. We bave carefully traced tbis provision .since its enactment in 1857, and from its wording and construction, and when considered in tbe light of tbe laws governing the collection of fines existing at tbe date of its enactment, we entertain no doubt that tbe imprisonment mentioned therein was intended as an additional penalty to tbe fine and costs prescribed by tbe first clause of tbe section. We think tbis is a far more reasonable interpretation than to conclude that it was the legislative design to provide' an easy loophole of escape for those who preferred to save their money by suffering a temporary confinement, or that it was intended to afford protection to tbe unlucky or impoverished gamester. We are fortified in tbis position by that provision of our criminal law which says that all laws in reference to gambling are remedial, and are to be construed liberally — not liberally in favor of tbe culprit, but for tbe suppression of vice.

It may be, as suggested in tbe able and logical brief for tbe state, that tbe court below should bave added a term of imprisonment upon nonpayment of tbe fine; but, if tbis was error, it was in appellant’s favor, and be cannot complain, and tbe state has not. Thomas v. Skate, 73 Miss., 46, 19 South., 195.

We think the motion for a new trial was properly overruled. Tbe statement attributed to Juror Cook, and denied by him, was not sufficient cause for setting tbe verdict aside.

We bave given every assignment of error careful consideration, but we find no reversible error.

Affirmed.