39 Iowa 387 | Iowa | 1874
I. The indictment is as follows: “The grand jury of the county of Wapello, in the name and by the authority of the State of Iowa, accuse Kinsey Jordan of the crime of nuisance, committed as follows: The said defendant
It is possible that the bias of being counsel in that case may still remain. But we cannot hold this indictment insufficient without overruling that case. This we cannot now do.
II. It is further urged here that the court erred in ordering the defendant to be confined at hard labor until said fine and costs are paid, at the rate of one dollar and fifty cents per day. This point involves the proper construction of our-Code:
“ Sec. 4092. Whoever is convicted of erecting, causing or continuing a public or common nuisance, as described in this chapter, or at common law, when the same has not been modified or repealed by statute, where no other punishment therefor is specially provided, shall be punished by a fine not exceeding one thousand dollars, and the court, with or without such fine, may order such nuisance to be abated, and issue a warrant as hereinafter provided.
“ Sec. 4509. A judgment that the defendant pay a fine may
“ Sec. 4736. Any able bodied male person over the age of sixteen years, and not over the age of fifty years, now or here-, after confined in any jail in this State, under the judgment of any court of record or of any other tribunal authorized to imprison for the violation of'any law, ordinance, or by-law, or police regulation, may be required to labor during the whole or part of the time of his sentence, as hereinafter provided, and such court or other tribunal, when passing final judgment of, imprisonment, whether for non-payment of fine or otherwise, shall have the power to determine, and shall determine, whether such imprisonment shall be at hard labor or not.
“ Sec. 4611. When any person convicted of a criminal offense is sentenced to pay a fine and costs only, and stand committed until sentence be performed, if the sentence be not complied with by payment of the sum due within thirty days next following, the sheriff may liberate him from prison if committed for no other 'cause, and if he be unable to pay such fine and costs, upon his giving his promissory note for the amount due, payable to the treasurer of the county where he was committed, on demand, with interest, accompanied with a written schedule containing a true account of all his property, of every kind, by him signed and sworn to; which note and schedule must be by such sheriff delivered without delay to the treasurer for the use of the county.”
It follows from this view that the court erred in directing the imprisonment until the fine and costs ¿repaid by the labor at the rate of one dollar and fifty cents per day. It will be so modified as to limit the time of imprisonment to one day for 'every three and one-third dollars of the fine; that the defendant be required to labor during the time of his imprisonment and that he be credited'upon the judgment for such labor, at the rate of one dollar and fifty cents per day. With this modification, the judgment will be, at the costs of the appellee,
Aeeirmed.