53 S.E. 142 | N.C. | 1906
The defendant, tried before a justice of the peace on a charge of bastardy upon the complaint of the mother of the child, did not deny the paternity, and was therefore adjudged to pay her $50 allowance (Revisal, sec. 254) for the maintenance of the child, a penny fine and $3.80 costs of the action and to give bond in the sum of $100 with surety to indemnify the county against any and all charges for the maintenance of the bastard child. This judgment was in accordance with sections 254 and 259 of the Revisal of 1905.
The judgment further provides: "And in default of such payments and of the execution of said bond, that he be committed to the house of correction of Wake County for the term of ten months, with authority to the commissioners of said county to work him on the public roads of *557 the county," etc. Section 262 of the Revisal provides: "In all cases arising under this chapter when the putative father shall be charged with costs or the payment of money for the support of a bastard child, and such putative father shall by law be subject to be committed to prison in default of paying the same, it shall be competent for the court to sentence such putative father to the house of correction for such time, not exceeding twelve months, as the court may deem proper: Provided, that such person or putative father, at his discretion, instead of being committed to prison or to the house of correction, may bind himself as an apprentice to any person whom he may select," etc. "The price obtained shall be paid to the county treasurer."
The defendant did not comply with the order of the court nor (728) accept the option given him to bind himself as an apprentice to some person selected by himself. Thereupon the sentence to "ten months in the house of correction" became operative, if there was such "house of correction."
The Revisal, sec. 1352, authorizes the county commissioners to work upon the public works, highways, and streets any person imprisoned in jail "upon conviction of any crime or misdemeanor or who may be committed to jail for failure to enter into bond for keeping the peace, or for good behavior, and who fail to pay the costs," provided "such prisoner or convict shall not be detained beyond the time fixed by the judgment of the court," and also provided the court should so authorize in its judgment. The Revisal, sec. 1355, makes it the duty of the judge, where "any county has made provision for the working of convicts upon the public roads," to sentence for the term of their imprisonment "all persons convicted of offenses" and sentenced to imprisonment in jail, or to the penitentiary for less than ten years, and all sentenced to imprisonment for "nonpayment of costs in criminal cases." This statute has often been held constitutional. See cases cited in S. v. Young,
The defendant having remained in jail twenty days, filed a petition before the clerk of the Superior Court of Wake, under authority of Revisal, secs. 1915-1918a, and upon taking the oath prescribed by section 1918a was discharged from custody. The State and the woman appealed, assigning as grounds: (1) The imprisonment of the defendant was for a definite and fixed term, under Code, sec. 38 (now Revisal, sec. 262), and the clerk had no power to discharge him. (2) Because the defendant did not aver that he had paid or worked out half his costs, as required by chapter 419, Laws 1889 (now Revisal, sec. 1355).
The defendant relies for his discharge upon the Revisal, sec. 1915, which authorizes such discharge, upon the procedure provided for in that chapter, of — (729) *558
1. Every putative father of a bastard committed for a failure to give bond, or to pay any sum of money ordered to be paid for its maintenance.
2. Every person committed for the fine and costs of any criminal prosecution.
But that section, originally enacted in 1773, must be construed in connection with the other sections of the Revisal, and does not repeal the later statutes, which authorize and direct the working upon the public road of those sentenced for nonpayment of costs in criminal cases, as Revisal, secs. 1352, 1355, and others, which are a modification of the general terms of the earlier statute (now Revisal, sec. 1915). That earlier statute applied to a condition of things when the working out of costs was unknown, and the defendant, without this provision for relief, would be imprisoned without hope of discharge. It does not apply to counties where provision for working out the costs is now made. The earlier statute, section 1915, does not repeal those enacted much later, sections 1352, 1355, but the latter modify it. This has been so held in S. v. Manuel,
That section 1915 of the Revisal, authorizing the discharge of insolvents in the mode therein prescribed, is modified by the later statute (passed in 1887), now Revisal, sec. 1355, may be seen by reference to the following language of section 1355: "When any county has made provision for the working of convicts upon the public road . . . it shall be lawful for, and the duty of, the judge holding court in said counties to sentence to imprisonment at hard labor on the public roads for such terms as are now prescribed by law for their imprisonment in the county jail or in the State's Prison, the following classes of convicts (naming them). In such counties . . . also, all insolvents, (730) who shall be imprisoned by any court in said counties for nonpayment of costs in criminal causes, may be retained in imprisonment and worked on the public roads until they have repaid the county to the extent of the half fees charged up against each county for each person taking the insolvent oath." There are further provisions that the "rate of compensation allowed each insolvent for work on the public roads shall be fixed by the county commissioners at a just and fair compensation"; and section 1352 further provides that such insolvent "shall not be detained beyond the time fixed by the judgment of the court."
Some one must labor to pay off the half costs incurred by an insolvent convicted of crime, and the Legislature thought it better that the lawbreaker should do this, and to that extent improve the public roads, than that the punishment should fall upon hard-working citizens of earning *559 money to pay what convicted criminals should earn by their own labor; and the criminals are safeguarded both by fair valuation for their services and the judgment limiting the time they may serve. There is no constitutional provision denying this power to the Legislature.
The defendant then relies upon the ground that the sentence to the house of correction is unconstitutional because it is for nonpayment of debt. There is a failure to discharge a public duty, to wit, to provide for the maintenance of the bastard child and prevent its being a charge upon the county, and to give bond to protect the public from such liability. This public duty can be enforced by appropriate remedy, like failure to work the public roads, to serve on the jury, to serve in the army, to pay alimony ordered (Pain v. Pain,
The defendant further contends that any order of imprisonment for nonpayment of a fine and costs or that the defendant be set to work them out, on the public roads, is unconstitutional because it is "imprisonment for debt." It is true that a fine and costs are also debts, but they are more. A fine and costs in criminal actions are a part of the punishment imposed as a result of the conviction and judgment, and, if not paid, imprisonment at hard labor can be imposed upon such failure. This has always and everywhere been held. "It is competent for the Legislature to impose hard labor upon a defendant for nonpayment of the costs of the prosecution, this being part of the punishment." 11 Cyc., citing Joice exparte,
"Imprisonment for nonpayment of the costs of the prosecution is not repugnant to the constitutional prohibition of imprisonment for debt." 8 Enc. Pl. and Pr., 994, citing numerous cases from Alabama, (732) Connecticut, Illinois, Indiana, Kansas, Maryland, Mississippi, North Carolina, Tennessee, and Texas. The decisions as well as the statutes in this State are fully in accord with these authorities. Among them are S. v. Manuel,
Working out fines and costs in criminal cases has always been held a matter within legislative power. Ex parte Meyer,
Imprisonment of the putative father for failure to obey an order of maintenance, or to give the bond, is sustained wherever the statute so authorizes. It is a matter of legislative discretion, and is not imprisonment for debt. S. v. Palin,
The defect, however, in the contention for the State is that Revisal, secs. 1352 and 1355, do not include among those authorized to be worked upon the roads those "sentenced to the house of correction," nor does it include those who fail "to give bond for maintenance of a (733) bastard," nor for failure to pay costs, except "those imprisoned for nonpayment of costs in criminal causes." In the recent case of S. v. Liles,
For these reasons the defendant was entitled to be discharged from custody. Whether he ought not rather to have been set at large upon a writ of habeas corpus than by this proceeding is a matter we are not called upon to discuss, since we cannot remand him to illegal custody.
Affirmed.
WALKER and CONNOR, JJ., concur in result.
Cited: S. v. Addington,
(734)
