194 F. 652 | 8th Cir. | 1912
The laws of the state of Arkansas empower the county court of any county in that state to let the labor of persons convicted and sentenced to the county jail to a contractor on condition that he agrees to maintain, keep, and work them (sections 1080 et sec]., Kirby’s Digest 1904), and they authorize the contractor to whip any such prisoner with a strap 2 feet long and 3j4 inches wide, attached to a wooden handle, with 10 licks once in 24 hours for his refusal to work. Rule 3 of the Prison Board. The county court of Pulaski county made a contract of this nature with the defendant below, E. N. Weigel. Antone Brown, the plaintiff, had been charged with assault and battery, tried, convicted, sentenced to pay a fine of $10 and costs, and committed to the jail i.n default of payment by a justice of the peace, and he had been delivered to the defendant Wei-gel, who had worked and whipped him. The limit of the punishment for the offense of assault and battery, with which alone Brown was charged and of which alone he was convicted, was a fine. No authority was given to the justice to punish that offense with imprisonment (section 1585), and the statutes of Arkansas expressly provided that, where a prisoner failed to pay his fines and costs, the contractor might keep and work him for such time as at the rate of 75 cents per day would discharge them (section 1091), and that the defendant
The plaintiff was confined 78 days. He admitted and alleged in his pleading that he was convicted of assault and battery, fined $10 and costs, in all $17, and committed to the county jail by the judgment of the justice of the peace, and that this fact justified the contractor in holding him at the rate of 75 cents a day during 36 days. ' In view of this admission, the court below held that he could recover nothing for his imprisonment and lawful whipping during these days, but that the commitment under which alone Weigel justified was void on its face gave him no protection, and that he was liable in damages for the confinement; and whipping of the prisoner during the remaining 42 days that he held him. The statutes of Arkansas provided that “where a judgment of death or confinement, either in the penitentiary or county jail, is pronounced, a certified copy thereof must be furnished forthwith to the sheriff, who shall thereupon execute it, and no other warrant or authority is necessary to its execution.” .Section 2455. “The sheriff in executing a judgment of confinement shall deliver the defendant with a certified copy of the judgment to the keeper of the penitentiary, or to the jailer, according to the judgment.” Section 2461. “The defendant shall not be held in confinement for a fine for a longer period than at the rate of one day for each 75 cents of the fine.” Section 2463.
There was no evidence that any certified copy of the judgment of the justice was ever delivered to the sheriff, the jailer, or the contractor. The commitment on which the defendant relies did not correctly recite, nor did it correspond with, the judgment of the justice. That judgment was that Brown was convicted of assault and battery, and that he pay a fine of $10 and costs, and be committed to the county jail in default of payment. The commitment recited that Brown was convicted of assault and battery, adjudged to be confined in the county jail for 60 days, to pay a fine of $10 and $18.50 as costs', and it directed the officer, in default of payment of the fine and costs, to deliver him to the jailer “to be imprisoned in the manner provided by law, until the fine and costs are paid, not exceeding, however, one day for every 50 cents of said fine and costs remaining unpaid.” This commitment was signed by the justice who rendered the judgment. The 60 days imprisonment there recited and the confinement until at the rate of 50 cents a day the fine and the .costs were paid were not only dehors the judgment rendered, but they were beyond the power of the justice to inflict in the case of which he had jurisdic-
The second complaint of the trial is that the court excluded evidence of the character of the assault and battery of which Brown was convicted, of the person upon whom it was committed, and of the fact that the first charge against him was of an assault with intent to commit a rape. None of this evidence, however, had any relevancy to the issues in this case. They were whether or not the confinement and whipping were justified by the commitment, and, if they were not, the amount of the damages the plaintiff was entitled to recover. The evidence here offered was too remote and inconsequential to be competent on the question of damages, and it had no tendency to establish the claim of either party on the other issue.
But there was no error in these rulings. The inalienable right to liberty and the pursuit of happiness demands itself and no one is es-topped from recovering it or damages for its infringement by his silence in the face of lawless and resistless might. The legal presumption is that every infringement of that right is unlawful, and the burden is on him who inflicts it to justify his action. The Constitution perpetually cries its stern and forbidding warning that no person shall be deprived of life, liberty, or property without due process of law. And whoever, under such statutes as have-been cited in this case, confines and inflicts corporal punishment upon a person, must see to it that he at least has process that is not void on its face to protect him in his course. Dynes v. Hoover, 20 How. 65, 80, 15 L. Ed. 838. After the time during which the defendant could lawfully hold the plaintiff had expired, his agent, pursuant to general directions which the defendant had given him, whipped the plaintiff with a leather strap attached to a wooden handle while two other prisoners held him. What an absurdity it would be for a court to deliberately hold that Brown was estopped from recovering damages for this unlawful confinement and beating because this helpless victim did not cry out to his tormentor that his act was unlawful, and did not thereby probably subject himself to a severer whipping and greater suffering.
It is so ordered.