15 Or. 598 | Or. | 1888
-On a complaint filed in a Justice’s Court, the defendant was charged with the crime of assault and battery. Issue being joined on a plea of not guilty, the defendant demanded a jury, which being duly summoned and sworn, a trial was had, and a verdict of guilty returned against the
■ The Code provides that “no appeal can be taken by the party who demanded a jury from a judgment in a Justice’s Court, given upon a verdict of such jury, in either a civil or criminal action, unless the judgment be for a fine or amount of money not less than fifty dollars, or for the recovery of personal property of the value of not less than fifty dollars, exclusive of costs and disbursements in either case, or imprisonment of such party not less than twenty-five days.” (Hill’s Code, § 2170.) To authorize an appeal the criminal phrase of this section contemplates two cases, one where the judgment is “for a fine not less than fifty dollars, exclusive of costs,” and the other where the judgment is “for imprisonment not less than twenty-five days.” In a word, the test of a party’s right to appeal from a judgment of a Justice’s Court in a criminal action, the other facts concurring, is, that the fine imposed by the judgment shall not be less than fifty dollars, exclusive of costs, or that the imprisonment fixed by the judgment shall not be less than twenty-five days. The defendant was a party against whom a judgment was given in a Justice’s Court upon the verdict of a jury, demanded by him for a fine less than fifty dollars, namely, “ a fine of thirty dollars, and costs taxed at fifty-four dollars,” and which judgment further provided, “that he be imprisoned in the county jail until said fine and costs be paid, not exceeding forty-two days.”
In the event of the non-payment of the fine and costs, the
In the case in hand, it will be observed, (1) that the form of the judgment against the defendant is for a fine, and that the imprisonment in the contingency provided is not inflicted as a punishment, but as a means of coercing the payment of the fine and costs; and (2) that the number of days designated, which the imprisonment is not to exceed, namely, forty-two days, is computed by aggregating the fine and costs, and allowing two dollars for each day’s imprisonment. The offense of an assault and battery for which the defendant was convicted the Justice’s Court had jurisdiction of, and was authorized to impose a punishment, by fine not less than five nor more than fifty dollars. (Hill’s Code, § 2052, subd. 6.) The court was therefore authorized to impose the fine adjudged against the defendant, but there is no authority given under the subdivision cited to impose any other punishment than a fine. The court could not inflict imprisonment as a punishment, or at all, except in aid of, and as subsidiary to the enforcement of the payment of the fine, and only then by virtue of authority derived from some statute. This is true of inferior courts, whatever may have been the prac
As subdivision 6 of section 2052 only authorized the imposition of a fine as a punishment, and as section 1408, for the pur-, pose of enforcing the payment of the fine and not as a punishment, directs that the defendant be imprisoned until the fine be satisfied, not to exceed one day for every two dollars of the fine, it follows that when the defendant was adjudged to pay a fine of thirty dollars, the imprisonment specified for the purpose of coercing its payment could not exceed fifteen days. To construe section 1408 otherwise, that is to say, as authorizing a punishment by imprisonment, would look like competing the defendant under one law (§ 2052, subd. 6), and punishing him under another (§ 1408), unless the two must be read together, and are in practice in pari materia, the true intent and purpose of section 1408 being not to pronounce imprisonment as the punishment, but as a means of coercing the payment of the judgment for a fine for an assault and battery under subdivision 6, section 2052. (People v. Markham, 7 Cal. 208; Ex parte Kelly, 28 Cal. 415; Ex parte Botleg, 31 Ill. 89.) In speaking of a like section (1205) in Cal. Code, Sanderson, C. J., said, in Ex parte Kelly, supra: “ The imprisonment is no part of the punishment per se, but is merely one of the modes by which the law enforces the satisfaction of the fine,
Reserving the question of the validity of such judgment for the present, it is manifest that the fiue imposed was less than the sum designated by section 2170, supra, which would entitle the defendant to appeal, or regarding the imprisonment as a punishment, which we deny, for the time authorized by law, namely, fifteen days, still the period of such imprisonment would be less than the minimum specified, which would authorize an appeal} but otherwise, if the number of days named in the judgment, computed on the basis of one day for every two dollars of the fine and costs, aggregated, is to be regarded as an imprisonment within the meaning of that section. As already explained, we regard the number of days specified in this section, for which an appeal lies, to refer to a judgment for imprisonment pronounced by the court as a punishment, and not to refer to a case, as here, where the defendant was convicted and sentenced to pay a fine under a law which authorized no imprisonment, except as derived from section 1408, supra, and authorized as a conveyance of the power to fine, and for the purpose of coercing its payment, and not as a punishment. So that in this case, we are to look to the fine adjudged, and not to the time of imprisonment directed to' enforce its payment, to determine the defendant’s right to appeal.
In this view, the maximum fine authorized to be imposed upon conviction of assault and battery is the only case where an appeal would lie under section 2170, supra, and the fine imposed as shown by this record being less than fifty dollars, there was
It is claimed by the attorney for the State that imprisonment for costs is allowed by section 2145 of Hill’s Code, and that in a like case, it was so held in State v. Crowley, 11 Or. 512. That section only undertakes to provide the substance of a form to be used by justices upon a judgment of conviction for entries in their docket, and necessarily the application will depend upon the statute under which the defendant is tried and convicted. To illustrate if he be tried and convicted under some statute of which a justice has jurisdiction, providing for a punishment by fine, and his imprisonment until such fine and costs are paid, on the rates of one day for every two dollars of such fine and costs, as the Circuit Court is authorized to do under section 1968, then the fine and costs may be aggregated, and he be imprisoned until the same be paid, not to exceed one day for every two dollars of such fine and costs, as was done here. In such case, section 1408, supra, has no application. (See Ex parte Harrison, 63 Cal. 300.) But if the defendant be tried and convicted, the sentence of the court under the law be a fine, as in the present case, and the enforcement of its payment is dependent on section 1408, there the period of imprisonment cannot exceed one day for every two dollars of the fine. That section is not intended to enforce the payment of the fine and costs of the action by imprisonment; its language is confined exclusively to the fine, and it is only as to the fine that the party may be imprisoned at the rate of one day for
As this result is in conflict with State v. Crowley, supra, that case must be considered as overruled in the particular here mentioned, although it may be proper to state, as the opinion indicates, that the attention of the court was almost exclusively directed to the validity of a statute authorizing imprisonment for costs. But in view of the holding in that case, it is due the learned court below to say, that the error it made in entering that judgment sprang out of our error in that case.
As such judgment is void it must be reversed, and the cause remanded for such further proceedings as may be proper in accordance with this opinion.