Ex Parte McCoy , 45 Okla. Crim. 52 ( 1929 )

The petitioner herein, Jim McCoy, was regularly convicted in Ottawa county, Okla., in two cases for possession of narcotics, and was sentenced to the penitentiary to serve a term of five and four years, respectively, and to pay a fine of $5,000 in the first case and $2,500 in the second case. The petitioner has served the penitentiary portion of the sentence, but the fines have not been paid, neither have they been served in the penitentiary, and it is the contention of the petitioner in error, since the 1913 law, no fine can be collected in felony cases. This is the only point in the case at bar.

The petitioner contends that sections 5 and 6 of chapter 112, Session Laws of 1913, repeals all acts of the Legislature authorizing imprisonment for nonpayment of fines and costs, and that since the passage of the act of 1913 the state of Oklahoma is without any authority to confine the petitioner in the penitentiary for the nonpayment of the fine and costs assessed against him upon his conviction in the two cases in Ottawa county.

Section 13, article 2, Constitution of Oklahoma, provides:

"Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law."

Under the provisions of this section of the Constitution, the Legislature undoubtedly has authority to provide for imprisonment for nonpayment of fines and penalties imposed for the violation of law.

The title of chapter 112, Session Laws of 1913, is as follows:

"An act to amend section 31(a) of chapter 69 of the Session Laws of 1910; providing for the working of county, city and town convicts upon public highways, rock piles, or other public work; for the imprisonment and working of such convicts upon the public highways in lieu of payment of fines and costs, and regulating the time of such imprisonment and work; repealing sections 2607 and 5290 of the Statutes of Oklahoma, 1893, and sections 41 and 42, of Article one (1), of chapter 32 of the Session Laws of 1909, and sections 885, 6917, 6918, 6921, 6922, 7068 and 7793 of Snyder's Compiled Laws of Oklahoma, 1909, are hereby repealed; and declaring an emergency."

This title provides: First, for the amendment of section 31 (a) of chapter 69 of the Session Laws of 1910 to authorize imprisonment for nonpayment of fine and costs in all criminal cases. Second, for the working of a certain class of prisoners, to wit, county, city, and town convicts upon public highways, rock piles or other public works in lieu of payment of fine and costs. Third, fixes rate of allowance on all fines and costs in all criminal cases. These subjects are all germane to the act.

It will be noted that chapter 112, supra, amended section 31 (a), chapter 69, Session Laws of 1910, which reads as follows:

"The fees herein provided for the clerk of the district court, the clerk of the superior court, and the clerk of the county court, the sheriff and the county attorney as provided in this act, and all costs in the prosecution whether of the grade of misdemeanor or felony, shall in case of conviction be taxed as costs in the case and a judgment rendered against the defendant therefor; and award execution for the collection of the same as on execution in civil actions."

Section 31(a), as amended by section 1, chapter 112, Session Laws of 1913, reads as follows:

"The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison."

Section 31(a), chapter 69, Session Laws of 1910, provided for the collection of costs whether of the grade of misdemeanor or felony, only by execution. Section 31(a), as amended by section 1, chapter 112, Session Laws of 1913, provided that the costs in all criminal actions should in case of conviction be adjudged as part of the penalty of the offense and for imprisonment until the fine and costs were paid at the rate of $1 per day.

This court, in the case of Ex parte Bowes, 8 Okla. Cr. 201,127 P. 20, 23, had held:

"Under Bill of Rights, § 13, supra, permitting imprisonment for the nonpayment of fines and penalties imposed for the violation of law the Legislature of this state would have authority to provide as a part of the penalty for the violation of law the payment of costs and the enforcement of the payment by imprisonment. Under the provisions of our Penal Code and Procedure Criminal, the costs are not made a part of the penalty for the violation of law. The power to punish by fine does not include the power to add to such fine as may be deemed a proper penalty for the offense committed the costs of the prosecution also. Therefore the courts of this state have not the power to imprison a convicted defendant for the nonpayment of costs."

Section 31(a), c. 69, Session Laws of 1910, was amended by the Legislature evidently for the purpose of meeting the situation created by Ex parte Bowes, supra, wherein this court had held that there was no authority for imprisonment of convicts for nonpayment of costs.

Section 6917, Snyder's Compiled Laws of Oklahoma (Comp. Laws 1909), provided for imprisonment for nonpayment of fine at not exceeding a day for every $2 of the fine. This apparently left the length of term of each prisoner to be fixed in the discretion of the trial judge. Some judges fixed the rate of imprisonment at $1 per day and others $2. Section 6, chapter 112, Laws 1912, supra, expressly repealed this act and by section 31(a), c. 69, Laws 1910, as amended by section 1, chapter 112, Laws 1913, fixed a uniform rate for prisoners in all criminal cases at $1 per day for both fine and costs. The state had always had authority under the statute to imprison for nonpayment of fines, but had never had any authority to imprison for costs until after the passage of chapter 112, S.L. 1913. By this act the Legislature provided that the fine and costs should be part of the penalty in all cases; that defendants might be imprisoned in all cases for nonpayment of fine and costs; and that the allowance per day for nonpayment of fine and costs should be reduced from a maximum of $2 to $1 per day in all criminal cases whether misdemeanor or felony. It is evident from the reading of chapter 112, supra, that the Legislature intended to broaden the scope of the imprisonment act to include every class of criminal cases whether misdemeanor, felony, or quasi criminal, and further to broaden the act by including the costs as part of the penalty to meet the conditions created by the decision of this court in the case of Ex parte Bowes, supra.

In the case of Ex parte Walker, 31 Okla. Cr. 36,236 P. 919, this court said:

"When a judgment in a criminal action imposes confinement, and in addition thereto a fine and costs, the fine and costs may, at the termination of the period of confinement specified, be enforced by further imprisonment until paid or satisfied at the rate of $1 per day. a. Upon this subject section 6332, Comp. Stat. 1921, supersedes section 2775 and earlier statutory provisions."

In the body of the opinion this court, referring to section 1, chapter 112, Session Laws 1913, says of such section:

"This is the law as it now stands. Therefore that part of the judgment providing for the satisfaction of the fine and costs at the rate of $1 per day was in accordance with the express terms of the statute now, and then in force and effect, and in harmony with the former decisions of this court. Smith v. State, 12 Okla. Cr. 513, 159 P. 941."

In Ex parte Bowes, 8 Okla. Cr. 201, 127 P. 20, this court said:

"`In all cases of conviction when a fine is imposed,' the court may `order the defendant committed to jail until the fine is paid, and * * * the power of the court to order a defendant sentenced to pay a fine to be committed is not confined to cases where a fine only is inflicted, but also extends to cases where both imprisonment and fine are inflicted'."

It will thus be seen that the right to imprison for nonpayment of fine has always been upheld by this court, but that the right to imprison for nonpayment of costs was held not to exist prior to the passage of chapter 12, Session Laws 1913.

In the case of Ex parte Dunnavant, 41 Okla. Cr. 113,271 P. 866, in paragraphs 2 and 3 of the syllabus, this court said:

"There is no statute requiring a state convict, after he has served his term of imprisonment, to remain in the state penitentiary until he has satisfied the costs taxed against him at $1 per day.

"The restraint of a convict by the warden of the state penitentiary for the payment of costs is without authority of law."

Upon a reconsideration of this whole question, the court is of the opinion that the statute authorizes imprisonment in felony cases for nonpayment of fine and costs. The case of Ex parte Dunnavant, supra, is therefore expressly overruled.

For the reasons stated the writ is denied.

EDWARDS, P.J., concurs.