Clark v. State

Alabama Court of Appeals

Clark v. State

56 So. 813, 2 Ala. App. 196, 1911 Ala. App. LEXIS 46

DecidedJune 30, 1911

StatusPublished

This text of 56 So. 813 (Clark v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. State, 56 So. 813, 2 Ala. App. 196, 1911 Ala. App. LEXIS 46 (Ala. Ct. App. 1911).

Pincite

Opinion

WALKER, P. J.

The defendant was convicted of a misdemeanor, and was sentenced to pay a fine of $50, the amount assessed by the verdict of the jury; and, on his failing to pay the fine and costs, or to confess judgment for the same, was sentenced to perform hard labor [198]*198for the county as punishment for the offense, and also for an additional period of 156 days, .at the rate of 40 cents per day, to pay the costs of the prosecution, which amounted to $62.24. Included in these costs was an item of $19.10, the amount of the sheriff’s fees and .expenses for the removal of the defendant from the county in which he was arrested to the county in which he was triable.

It is insisted that the court was in error in sentencing the defendant to hard labor for the payment of the sheriff’s removal bill. The ground of the objection to that part of the sentence is that the statute (Code 1907, § 6638, last cause) which authorizes the taxation of that item of cost provides only for the issue of execution against the defendant therefor; and it is insisted that there is no authority of law for including that item in the amount which is made the basis of the court’s determination of the period of hard labor required to- work out the costs, when the defendant fails to pay them or to confess judgment therefor. In other words, the contention is that the effect of the provision above mentioned is to make execution against the defendant the exclusive method of enforcing the collection of the sheriff’s removal fee and expenses. This contention cannot be sustained. Section 6638 of the Code, in which that provision is found, prescribes the fees and allowances to which the sheriff is entitled in criminal cases, and does not deal with the question of sentencing the defendant to hard labor to pay the costs of the prosecution. Sections 6584 and 7635 of the Code contain the applicable provisions of the law on that subject. By the express terms of the last-mentioned section, “if the costs are not presently paid or judgment confessed therefor, as provided by law, then the court may impose additional hard labor for the county for such period, [199]*199not to exceed ten months, as may he sufficient to pay the costs, at the rate,” etc. In such a case as the present one, the amount due to the sheriff for the removal of the defendant is as much a part of “the costs” as any other item mentioned in section 6688 of the Code. If the provision for issuance of an execution, contained in the last clause of that section, could be construed as having the effect of making an execution against the defendant the exclusive method of enforcing the collection of that item of costs, it would follow that nothing but an execution could be resorted to for the collection of any of the costs of the prosecution in such a case, as the execution there provided for is not merely for the removal fees and expenses, but also “for the other costs.” Plainly such a construction is not permissible, as the result would be to prevent obedience' to the explicit requirements of sections 6584 and 7635 of the Code. Section 6572 of the Code has no bearing upon the question under consideration. That section relates to the items of costs to be paid out of the convict fund, when the defendant has been convicted of a felony, and sentenced to the penitentiary. It does not purport to deal with the question of the costs to be included in determining the period of a sentence to hard labor for the county for the payment of the costs in a misdemeanor case.

The court should have sentenced for costs at the rate of 75 cents a day, as provided by section 7336 of the Code, and not at the rate of 40 cents a day; the section of the statute undertaking to prescribe the lower rate having been pronounced unconstitutional.—Dowling v. City of Troy, 172 Ala., 56 South. 118. In this respect, the judgment will be here corrected.—Johnson v. State, 94 Ala. 35, 10 South. 667. As thus corrected, the judgment will be affirmed, without costs.

Corrected and affirmed.

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WALKER, P. J.

The defendant was convicted of a misdemeanor, and was sentenced to pay a fine of $50, the amount assessed by the verdict of the jury; and, on his failing to pay the fine and costs, or to confess judgment for the same, was sentenced to perform hard labor [198]*198for the county as punishment for the offense, and also for an additional period of 156 days, .at the rate of 40 cents per day, to pay the costs of the prosecution, which amounted to $62.24. Included in these costs was an item of $19.10, the amount of the sheriff’s fees and .expenses for the removal of the defendant from the county in which he was arrested to the county in which he was triable.

It is insisted that the court was in error in sentencing the defendant to hard labor for the payment of the sheriff’s removal bill. The ground of the objection to that part of the sentence is that the statute (Code 1907, § 6638, last cause) which authorizes the taxation of that item of cost provides only for the issue of execution against the defendant therefor; and it is insisted that there is no authority of law for including that item in the amount which is made the basis of the court’s determination of the period of hard labor required to- work out the costs, when the defendant fails to pay them or to confess judgment therefor. In other words, the contention is that the effect of the provision above mentioned is to make execution against the defendant the exclusive method of enforcing the collection of the sheriff’s removal fee and expenses. This contention cannot be sustained. Section 6638 of the Code, in which that provision is found, prescribes the fees and allowances to which the sheriff is entitled in criminal cases, and does not deal with the question of sentencing the defendant to hard labor to pay the costs of the prosecution. Sections 6584 and 7635 of the Code contain the applicable provisions of the law on that subject. By the express terms of the last-mentioned section, “if the costs are not presently paid or judgment confessed therefor, as provided by law, then the court may impose additional hard labor for the county for such period, [199]*199not to exceed ten months, as may he sufficient to pay the costs, at the rate,” etc. In such a case as the present one, the amount due to the sheriff for the removal of the defendant is as much a part of “the costs” as any other item mentioned in section 6688 of the Code. If the provision for issuance of an execution, contained in the last clause of that section, could be construed as having the effect of making an execution against the defendant the exclusive method of enforcing the collection of that item of costs, it would follow that nothing but an execution could be resorted to for the collection of any of the costs of the prosecution in such a case, as the execution there provided for is not merely for the removal fees and expenses, but also “for the other costs.” Plainly such a construction is not permissible, as the result would be to prevent obedience' to the explicit requirements of sections 6584 and 7635 of the Code. Section 6572 of the Code has no bearing upon the question under consideration. That section relates to the items of costs to be paid out of the convict fund, when the defendant has been convicted of a felony, and sentenced to the penitentiary. It does not purport to deal with the question of the costs to be included in determining the period of a sentence to hard labor for the county for the payment of the costs in a misdemeanor case.

The court should have sentenced for costs at the rate of 75 cents a day, as provided by section 7336 of the Code, and not at the rate of 40 cents a day; the section of the statute undertaking to prescribe the lower rate having been pronounced unconstitutional.—Dowling v. City of Troy, 172 Ala., 56 South. 118. In this respect, the judgment will be here corrected.—Johnson v. State, 94 Ala. 35, 10 South. 667. As thus corrected, the judgment will be affirmed, without costs.

Corrected and affirmed.

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56 So. 813, 2 Ala. App. 196, 1911 Ala. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-alactapp-1911.

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