115 Wis. 50 | Wis. | 1902
It is claimed that the sentence is void for uncertainty,- that it is in the alternative so that plaintiff in error could not know whether his punishment was payment of a fine of $100 and the costs of the prosecution, or confinement in the county jail for an indefinite term. Reliance is placed upon State v. Haas, 52 Wis. 407, 9 N. W. 9. There the sentence was that the prisoner should pay a fine of a specified amount or be confined in the county jail for fifty days. The decision rested on the fact that there was an independent provision of law authorizing punishment by a fine and costs, and another such provision authorizing punishment by confinement in the county jail for a specified term, and that the two parts of the sentence were stated in the alternative form. The latter feature is present in the sentence before us, but not the former. Only one kind of punishment authorized by the statute under which the prosecution was had (sec. 1550, Stats. 1898) is ref erred to in the sentence, notwithstanding it is worded in the alternative instead of the conjunctive form as the statute requires. That part of such section material to be considered is as follows:
“Shall be punished therefor by a fine of not less than fifty dollars nor more than one hundred dollars, besides the coste*53 of suit; or in lieu of such, fine by imprisonment in the county jail of the proper county not to exceed six months nor less than three months; and in case of punishment by fine as above provided such person .shall, unless the fine and costs' be paid forthwith, be committed to the county jail of the proper county until such fine and costs are paid or until discharged by due course of law.”
No provision is made, it will be seen, for confinement in the county j ail in case of punishment by fine, except in connection therewith, and not as a part of the punishment, strictly spealdng,- but as a means of enforcing payment of the fine and costs — that is, of maldng the element of punishment effective. The sentence here varies from the wording of the statute, as before indicated, only in the use of the word “or” in place of “and.” The meaning would be the same whether the one word or the other were used. In either case the punishment inflicted would be the fine and costa, and the commitment to the county jail would be a mere means of enforcing payment, and of course would terminate instantly upon that being made. So, if we look to sec. 1550 by itself, no serious difficulty in the sentence is perceived. It follows the language thereof in every essential particular.
It is further contended that the justice had no jurisdiction to commit the plaintiff in.error to the county jail for an indefinite time upon his failing to pay the fine and costs, because sec. 4633, Stats. 1898, expressly prohibits such commitments. The language thereof is as follows:
“When a fine is imposed as the whole or any part of the punishment for any offense by any law the court shall also sentence the defendant to pay the costs of the prosecution and the costs incurred by the county at' request of the defendant, and to be committed to the county jail until the fine and costs are paid or discharged; but the court shall limit the time of such imprisonment in each case, in addition to any other imprisonment, in its discretion, in no case, however, to ■exceed six months.”
It follows from what has been said that the justice had no power under’ any circumstances1 to legitimately render such a judgment as the one complained of. But it is said, on behalf of the state, that since the justice had jurisdiction of the person of the defendant and the subject matter involved in his prosecution, the rendition of an improper judgment was not a jurisdictional error remediable by a writ of certiorari even though it was1 such a judgment as the justice had no authority under any circumstances to render, citing In re Graham, 74 Wis. 450, 43 N. W. 148; S. C. 76 Wis. 366, 44 N. W. 1105. True, such is the doctrine of this court as regards criminal cases removed to this court for review, as to errors in the trial court occurring after verdict. It seems somewhat out of harmony with the general rule that the entry of any order or judgment by a court, which it has no authority under any circumstances to enter, is jurisdictional error. In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299. However, it Was early laid down as a rule of necessity, in order to save the justice of the state in criminal proceedings from being entirely defeated through illegalities in proceedings after verdict affecting the judgment, that the jurisdiction
The attorney general suggests that the plaintiff had a right of appeal, and that where such right exists certiorari will not lie. True, a writ of certiorari lies only to correct jurisdic
By the Gourb. — The judgment of the circuit court, affirming the judgment rendered by the justice, is reversed, and .the cause remanded with directions to reverse the justice’s judgment and release the plaintiff in error.