Ex Parte Bailey

1931 OK CR 72, 296 P. 998, 50 Okla. Crim. 53, 1931 Okla. Crim. App. LEXIS 99

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 7, 1931
• Docket: No. A-8072.
• Status: Published

Opinion

EDWABDS, J.

This is an original proceeding in ha-beas corpus. Petitioner alleges that he was convicted in the county court of Cleveland county for a violation of the prohibitory law and was sentenced to' serve a term of 30 days in tbe county jail and to pay a fine of $50; that be bas served said sentence of 30 days. That be gave a stay bond for tbe payment of tbe fine and costs under tbe provisions of section 2997, Comp. Stat. 1921, which is:

“Upon conviction, or plea of guilty of misdemeanor, tbe defendant may stay tbe collection of tbe fine by giving good and sufficient bond, with two or more sureties to-be approved by tbe court, conditioned that tbe defendant will pay tbe fine and costs witbin 30 days from tbe date of tbe judgment: Provided, that if tbe defendant is sentenced to pay a fine and be imprisoned, tbe bond shall be conditioned to pay tbe fine and costs witbin 30 days after tbe end of tbe term of imprisonment. Tbe court shall require the sureties on tbe stay bond to- justify as in other cases.”

That thereafter, tbe fine and costs not having been paid, petitioner was committed to- tbe county jail to- serve out tbe amount thereof. Petitioner contends that, after tbe stay bond was given, it was a payment, and tbe bond became a civil obligation only.

Tbe contention cannot be sustained. The execution of a stay bond under tbe provisions of section 2997, supra, is not a payment of tbe fine and costs, but merely a stay or suspension of tbe payment for a term of 30 days upon tbe conditions enumerated.

Section 2998, Co-mp. Stat. 1921, is in part:

“If tbe defendant, on conviction, or plea of guilty to a misdemeanor, fails to pay or secure tbe fine and costs, as before provided, or if after staying it be shall fail to- pay, be shall be committed until be shall have served out the amount thereof.* * *”

Where a defendant is convicted of a misdemeanor and executes a stay bond and then fails to pay the fine and costs so' stayed, it is tbe duty of tbe proper officer to com mit the defendant until the fine and costs shall be discharged by imprisonment- or shall have been paid.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.