88 P. 305 | Or. | 1907
delivered the opinion of the court.
The plaintiff filed her petition fpr an alternative writ of mandamus to compel the defendant to sign a bill of exceptions, or show cause why he should not do so, in a criminal action against her, tried before him as one of the circuit judges of the Fourth Judicial District, in which action she was found guilty
One of the questions raised by this demurrer is whether or not the payment of the $300 to the clerk was a voluntary payment of the fine, and thus a satisfaction of the judgment, in which event no appeal would lie: Batesburg v. Mitchell, 58 S. C. 564-571 (37 S. E. 36); Payne v. State, 12 Tex. App. 160; State v. Conkling, 54 Kan. 108 (37 Pac. 992: 45 Am. St. Rep. 270) ; State v. Westfall, 37 Iowa, 575; Madsen v. Kenner, 4 Utah, 3 (4 Pac. 992); Commonwealth v. Gipner, 118 Pa. 379 (12 Atl. 306); People v. Leavitt, 41 Mich. 470 (2 N. W. 812); Powell v. People, 47 Mich. 108 (10 N. W. 139). There is no provision under our code for the deposit, pending an appeal, of the amount of a fine imposed. In Batesburg v. Mitchell, 58 S. C. 564 (37 S. E. 36), the defendants paid their fines under protest, and yet the court said: “We know of no authority by which a person who has been convicted before a magistrate and sentenced to pay a fine can obtain the advantages of an appeal and staying-the sentence imposed upon him, by doing that which the law does not provide for, instead of that which the law does provide-for. It is not for persons accused and convicted of criminal offenses to choose the mode which suits them best of staying the execution of sentences imposed upon them, pending appeal;, but they must adopt the mode specially provided by law for.
The determination of this question makes it unnecessary to pass upon the other questions raised by the demurrer. The demurrer will therefore be sustained, and the petition dismissed.
Dismissed.