94 So. 896 | La. | 1922
The information filed in this case charges that the defendant—
“on or about the 3d day of June, A. D. 1922, at and in the parish of Bienville, district and state aforesaid, did willfully and unlawfully have and possess intoxicating liquo.r for beverage purposes; and that this is the second offense of the said Homer McGuire in which he has been guilty of violating Act No. 39 of the Louisiana Legislature for the year 1921,” etc.
The defendant was tried and convicted, and was sentenced to pay a fine of $1,000, and to serve four months in jail and to be worked on the public works, and, in default of payment of fine and cost, to serve 12 months additional in jail and to be worked on the public works; “this sentence to commence at the expiration and satisfaction of sentence that he is serving already.”
We find no motion to quash, no motion in arrest, no motion for new trial, and no bill of exceptions in the record.
However, counsel for defendant has filed the following assignment of errors:
(1) “That the judge of the lower court erred in his sentence by imposing a fine of $1,000 and imprisonment for four months, and to work on the public roads of the parish, this being excessive and violative of the- Constitution.”
(2) “That the district judge erred in his sentence by inflicting the alternative punishment of sixteen months imprisonment and to work on the public roads or works of the parish. This being ‘cruel and unusual punishment',’ and forbidden by the state and federal Constitutions.”
(3) “The district judge erred in imposing punishment provided for one convicted of ‘a felony’ on one convicted by him of a mere misdemeanor.”
The penalty imposed by the district judge in "this case was under section 3 of Act No. 39 of 1921 (Ex. Sess.), known as the Hood Act, and not under section 974 of the Revised Statutes of 1870, which provides that—
“The judge shall have the power to sentence any person * * * convicted for a second or third offense to double and triple the penalty imposed by law, and for a fourth offense, the person so convicted may be sentenced to perpetual imprisonment.” (Italics ours.)
It is to be observed, in the first place,, that section 3 of Act No. 39 of 1921 (Ex. Sess.) has not left the penalty'to be imposed on conviction for a second or subsequent offense to be determined by section 974 of the Revised Statutes of 1870, but has expressly provided in said section its own penalty “for the second or subsequent offense,” be it the third or the fourth. This penalty, while double the maximum fine of $500 for the first offense, is more than double the maximum imprisonment of 60 days, as the imprisonment for the second offense may be not “more than twelve months.” This imprisonment of not “more than twelve months,” or 365 days, is more than five times the maximum imprisonment of 60 days for the first offense. The minimum fine for the second or subsequent offense is fixed at not less than $100-and the minimum imprisonment at not less than 30 days. While both fine and imprisonment may be imposed under Said section upon the possessor of intoxicating liquors for beverage purposes, at the discretion of the judge, yet a fine or imprisonment may be imposed either for a first, second, or subsequent offense; while, on the other hand, this section makes it the mandatory duty of the judge to inflict both fine and imprisonment for the first, second, or subsequent violation upon the possessor of intoxicating liquors for sale.
With this distinction, there is no difference as to the penalties which may be imposed upon the possessor of intoxicating liq
“Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.” State v. Williamson et al., 133 La. 1052, 63 South. 515; State v. Boulanger, 134 La. 13, 63 South. 607; State v. Hollingsworth, 134 La. 555, 64 South. 409; State v. Payne, 134 La. 269, 63 South. 899.
The sentence imposed in the first instance in this ease was a fine of $1,000 and imprisonment for four months. The imprisonment, in default of payment of fine, was twelve months. Let able counsel for the defendant refers to this sentence as “an alternative sentence for sixteen months,” because the defendant was sentenced to work on the public works of the parish. This sentence was lawfully imposed under section 1 of Act No. 204 of 1908, providing for the working of persons sentenced to the parish jail, and was not imprisonment at hard labor. State v. Rigmaiden, 135 La. 237, 65 South. 229.
The sentence in this case is not excessive, as it is within the limits of Act No. 39 of 1921 (Ex. Sess.) and of section 980 of the Revised Statutes. The punishment is not “cruel and unusual” as it is inflicted by customary fine and imprisonment, and penal servitude. Nor does the sentence of defendant to. work on the public works of the parish of Bienville violate the Thirteenth Amendment . to the federal Constitution, as such sentence is a punishment for crimes. Said article provides that—
“Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
' The judgment appealed from is therefore affirmed.