Smith v. Barrow , 21 Ga. App. 650 ( 1918 )

Harwell, J.

(After stating the foregoing facts.) The defendant being convicted of the offense of fornication, punishment was imposed under section- 1065 of the Penal Code (1910) for a misdemeanor. The distribution of fines is to be made as provided in § 1112 et seq. They are distributed to the officers of the court and into the county treasury, except that in certain specified eases, where provided by statute, a portion of the fine may be paid to informers, schools, etc. Penal Code, §§ -216, .461, 753, 653. If the judgments in the instant case are to be construed as imposing a chain-gang and jail sentence, to be discharged on payment of a fine of $100, and an additional sum of $400 to the prosecutrix, as a penalty, then the defendant was entitled to be released upon the payment of the $100 fine, the court being without authority to order him to pay, as a part of the penalty, an additional sum to the prosecutrix. If, however, the judgments, when taken together, are to be construed as imposing a chain-gang and jail sentence, to be discharged on the payment of a fine of $500, and an attempt was made by the court to distribute this fine to the officers of the court and to the prosecutrix for the use of herself and child, then, in order to be relieved, the defendant was under the necessity of paying the $500 fine, and the latter part of the sentence, attempting to make such distribution of a portion of the fine to the prosecutrix, is to be treated as null and void; for the court, of course, was without authority to make such distribution of the fine, and the whole amount of the fine would be payable to the officers of the court, to be distributed as provided by law. The first judgment states that the defendant is to be relieved from said chain-gang and jail sentence “upon a payment of a fine of $1,000.” The second judgment ordered “that the fine of $1,000 heretofore imposed on the defendant in said case be, and the same is hereby, reduced to $500.” The effect of these judgments, in our opinion, is to impose a fine of $500 as a condition of release from the chain-gang and jail sentence. The fine as first imposed was $1,000, but by the second judgment it was reduced to $500. Following that, it is true, the court orders that $100 shall be paid to the clerk of Grady superior court, and the remainder of said fine be paid to the ordinary for the use and benefit of Miss Julia Davis, but this attempt to make a distribution of the fine otherwise than as provided by law should have been ignored by those charged with the collection of fines, as the court was without authority so to order. The fine of $500, which was imposed by the judgment as a condition of the defendant’s release, was payable to the officers of the court, to be distributed as other fines and forfeitures. But the fact that the court was without authority to order a part of the fine to be paid to the ordinary would not render the whole sentence void. Only that part which attempted to make such illegal distribution would be void. Though part of a sentence be unauthorized by law, that part will not make void the whole, but that which is good may be enforced. Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507); Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); Daniel v. Persons, 137 Ga. 826 (74 S. E. 260).

The defendant therefore can not complain that the officials of the court having the collection of fines in charge had him pay a portion of the fine to the ordinary, and he would not have any right of action against the ordinary to recover the money so paid. The trial judge did not err, therefore, in sustaining the general demurrers and dismissing the petition.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.