43 N.Y.S. 372 | N.Y. App. Div. | 1897
On the 30th day of December, 1892, on a conviction, for assault in the second degree, in the Court of Sessions in Kings county, the relator was sentenced to be imprisoned in the State prison at Sing Sing for the term of five years and to pay a fine of $730, and in default of the payment of said fipe, it was adjudged that he be further imprisoned in said State prison until said fine be paid, not exceeding 730 days, in addition to said term of five years. By allowance for good conduct, the relator’s term of imprisonment was reduced so that it expired on the 30th day of July, 1896. He failed to pay his fine, and for such failure the appellant continued to hold him in confinement. Thereupon the relator sued out a writ of
•On the hearing on the writ before the county judge, the relator' contended that he could not be imprisoned for non-payment of his fine for any time beyond the maximum term of imprisonment which the court was. permitted by statute to impose on his offense, and which in fact it did impose in his case. We think this objection is without substantial merit and requires no extended discussion. By section 221 of the Penal Code, assault in the second degree is punishable by imprisonment in a penitentiary or State prison for a term not exceeding five years, or-by a fine of not more'than $1,000, or both. The provision that the term of imprisonment shall not exceed five years applies only to the term of absolute' imprisonment which the defendant must necessarily undergo, and not to imprisonment to which he is subjected as a means to compel him to pay the fine. It has always been the practice to enforce the payment of a fine, when inrposed as a punishment for crime, by a direction that the defendant stand committed until the fine be paid. In fact it may be questioned whether there are any other means by which to collect a fine. In Rex v. Woolf (1 Chitty, 401) it was held that a writ levari facias could issue against the defendant’s property, though it appeared that, for a precedent for such a writ, it was necessary to go back for 150 years. Mr. Archbold, in his work on Criminal Pleading and Practice (p. 205), intimates that such a writ can be issued by the Court of King’s Bench alone. I cannot find in this State that any process against property has been issued for the collection of a fine. The revisers recommended to the Legislature certain provisions for the docketing, as an ordinary judgment, of a sentence to pay a fine and for the issue of execution thereon (3 R. S. [2d ed.] 850) against the propérty, but these provisions were not adopted. In Kane v. The People (8 Wend. 203) the chancellor, in his opinion,-states that the writ of levari'faoias could be issued. The concurring opinion of Senator Seward does not proceed on that ground. In Colon v. Lisk (post, p. 195) Judge Hatch discusses the question whether the collection of a fine can be enforced out of property. However this question may be determined, it is certain that Imprisonment is substantially the only means
The learned county judge, however, was of opinion that, while the defendant might be imprisoned for default in the payment of his fine, such imprisonment could only be directed in the county jail. This opinion he based on the language of section 488, Code of Criminal Procedure, when “ the judgment is imprisonment in a county jail, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all other cases when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer in execution of the judgment.” In this view he is supported by the decision of the Supreme Court of California in Ex parte Arras (78 Cal. 304), where it was held that the defendant could not, for default in payment of his fine, be fui'ther imprisoned in the State prison. I tbinV the language of this section, that the judgment be executed by the sheriff, can be entirely satisfied by confining its application to eases where the only sentence imposed on the defendant is a fine, or fine and imprisonment in the county jail. Previous to the Code of Criminal Procedure I can find no statute prescribing where a defendant should be imprisoned in default of the payment of a fine. At common law all felonies except two, according to Sir James Stevens, petit larceny and mayhem, were punishable by death. To these exceptions Mr. Bishop adds a third, rape. Misdemeanors were punishable by fine and imprisonment, as also by corporal punish
The order appealed from should be reversed and the relator returned to the custody of the appellant.
All concurred.
Final order reversed and relator returned to the custody of the appellant.