Hartranft v. Mullowny

43 App. D.C. 44 | D.C. Cir. | 1915

Mr. Justice Robb

delivered the opinion of the Court:

In Huyler’s v. Houston, 41 App. D. C. 452, where there had been a conviction in the police court of the District of a first offense under said act of 1900, it was ruled that while that court is not a court of the United States under the Federal Constitution, it nevertheless' is “a proper court of the United States” in the sense in which that phrase is used in the act. Two grounds in support of the contention that the police court is not such a “proper court of the United States” are now presented by the appellant, which, if is contended, were not brought to the attention of the court in Huyler’s Case. We will briefly consider them. It is said that should the appellant be convicted in the police court, and fined, in the event of his inability to pay that fine he will be compelled to undergo imprisonment without right or opportunity of relief therefrom except by pardon, whereas, should he be tried and convicted in the supreme court of the District, or any district court of the United States,, and he unable to pay such fine, he -would have the right and remedy of being released from imprisonment in accordance with the provisions of Sec. 1042 of the Revised Statutes of the United States (Comp. Stat. 1913, § 1706). That section permits a poor convict sentenced by any court of the United States to pay a line or a fine and costs, whether with or without imprisonment, who has been confined in prison thirty days solely for the nonpayment of such fine or fine and costs, to be discharged after hearing before a United States commissioner, and upon taking the prescribed oath.

In United States v. Mills, 11 App. D. C. 500, it was pointed out that under the general Criminal Code of the United States there is no statutory provision for the enforcement of a fine when that is the penalty imposed, or the only part of the penalty that remains to be performed, and hence that the enforcement can only be by imprisonment until the fine is paid; that this necessarily leaves the duration of the time of detention for that purpose indefinite. Were it not, therefore, for the provisions of see. 1042 of the Revised Statutes, no relief could be afforded poor convicts. The court further pointed out that under the act of July 23, 1892 (27 Stat. at L. 262, chap. 237), now incorporated into sec. 44 of our Code [34 Stat. at 1.. 1196, chap. 854], provision is made for the enforcement of fines imposed by the police court as follows: “In all cases where the said [police] court shall impose a fine, it may, in default of the line imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year.” It is apparent, therefore, that the special circumstances of a given case may he taken into consideration by the police court, and hence that the supposed difference in the degree of punishment in the supreme court and the police court really does not exist.

It is next insisted that the penalty for a violation, evenly first offense, of any provision of said act of 1906, is not limited to fine, because of the provision requiring the Secretary to give notice by publication after judgment of the court. In support of this contention two cases are relied upon : Klyman v. Com. 97 Ky. 484, 30 S. W. 985, and Cheek v. Com. 87 Ky. 42, 7 S. W. 403. In the former the statute prescribed the penalty of a fine or imprisonment for unlawfully permitting a minor to play pool, and the statute provided that the offender, in addition, should forfeit the right and privilege of again beeping a pool table. It was held that as the effect of the judgment was to deprive the accused of his right and privilege of again keeping pool tables, the penalty imposed was beyond the jurisdiction of the court. In the latter case, the statute made disfranchisement a consequence of conviction of bribery at an election. It was held that this provision was a part of the penalty, and hence that the city (eourt had no jurisdiction of the offense. The distinction between these cases and the one before us' is obvious. Here no additional penalty is imposed. The Secretary is merely required to publish the findings of the court. A court reporter, where there is one, does the' same.

It is further insisted that because the information is in seven counts, charging the defendant with as many separate and distinct offenses, the aggregate imprisonment in default of the payment of the fine may be more than one year, and, if so, must be in the penitentiary, and hence that the police court has no jurisdiction. This contention is based upon the provisions of sec. 934 of the Code [31 Stat. at L. 1341, chap. 854], which provides that “when any person is sentenced for a term . . . not longer, than one year, such imprisonment shall be in the jail, and where the sentence is imprisonment for more than one year, it shall be in the penitentiary. Cumulative sentences aggregating more than .one year shall be deemed one sentence for the purposes of the foregoing provision.” This section received the consideration of the court in Harris v. Lang, 27 App. D. C. 84, 7 L.R.A.(N.S.) 124, 7 Ann. Cas. 141, and it was ruled that the provision relating to cumulative sentences “has no reference to a sentence to pay a pecuniary fine, followed by imprisonment in default of payment, but relates only to cases in which the punishment is to be imprisonment.” Moreover, as previously pointed out, sec. 44 of the Code expressly limits the authority of the police court to a commitment of one year in default of payment of the fine imposed. We must assume the court will keep witliin its jurisdiction. United States v, Pridgeon, 158 U. S. 48, 38 L. ed. 631, 14 Sup. Ct. Rep. 746.

Judgment affirmed, with, costs. Affirmed.

A writ of error to the Supreme Court of the United States was allowed February 1, 1915.