County of Schuylkill v. Reifsnyder

• Decision Date: 01 February 1864
• Citation: 46 Pa. 446
• Court: Pennsylvania Supreme Court
• Parties: The County of Schuylkill <I>versus</I> Reifsnyder.

Page 446

46 Pa. 446

The County of Schuylkill versus Reifsnyder.

Supreme Court of Pennsylvania.

February 1, 1864.

ERROR to the Common Pleas of Schuylkill county.

George H. Clay, for the County.—The defendant justifies himself by the pardon. Is he justified? In the case of The Commissioners v. The County of Philadelphia, 2 S. & R. 219, it was ruled that the Acts of September 23d 1791, and of March 28th 1814, do not conflict; that payment of the costs by the county does not discharge the prisoner from the payment of them; and whether the prisoner has property sufficient to discharge them must be established in a judicial manner, and not depend upon the judgment of the keeper.

After judgment, the right to the costs, being not an original but a statutory right, becomes vested in those entitled to them under the statutes, which the 9th section of the 2d article of the Constitution does not empower the executive to divest. He can no more divest this right than the legislature could take away other property from the county or private persons without compensation first given. It is true that in The Commonwealth v. Denniston, 9 Watts 142, it was ruled that "a recognisance for the appearance of a defendant, charged with a criminal offence, may be remitted by the governor after forfeiture and a judgment upon it for the use of the county," but the power to remit a forfeiture is expressly given. He shall have power to remit fines and forfeitures, &c. and certainly nothing is more of a forfeiture than a recognisance forfeited. A judgment upon it adds no additional force, but is the mode of reaping it. Besides, the forfeitures which may be remitted are such, and such only, as were originally payable to the state, and the recognisance remitted belongs to that class. In Duncan v. Commonwealth, 4 S. & R. 449, Tilghman, C. J., says: "If the right was vested in the officers, I agree that the governor had no power to affect their right. But whether the right was vested was the question. And I take it that it was not vested before judgment, and, when the defendant pleaded his pardon, judgment ought not to have been given. Thus in the law laid down in Cro. Car. 9 and 199, `costs for which judgment has been given are not remitted by a pardon of the offence subsequent to payment, because there was an interest vested in private persons.'"

The rule governing this case is given in Shoop v. The Commonwealth, 3 Barr 126. See also 6 Harris 519; 10 Id. 18. The costs in this case were not originally payable to the state, but are creatures of the statutes; and the pardon can no more divest the right vested by the judgment in the prosecution, than it could in the case of Shoop effect a remission of the one-half of the penalty there vested in a private informer.

John W. Ryan, for defendant in error.—It is contended by the plaintiff in error that the keeper of the prison made himself personally liable for costs, having discharged this prisoner on the pardon of the governor. This assumption involves two considerations: first, that the discharge was unlawful; and second, that such unlawful discharge resulted in personal liability to pay the costs.

The defendant in error denies the legal accuracy of both of these conclusions. Deibert was sentenced to imprisonment under the 8th section of the Act of 23d of April 1829, which provides that every person duly convicted of voluntary manslaughter shall be sentenced to undergo imprisonment in the penitentiary by separate and solitary confinement at labour for a period of not less than two nor more than six years.

The act defining the punishment is silent as to the payment of costs, and therefore does not make the payment of costs a part of the sentence. The judgment in cases of voluntary manslaughter is not imprisonment for the non-payment of the costs of prosecution, but for a definite, limited period of time.

The Act of 28th of March 1814, provides that in all cases of conviction in any Court of Oyer and Terminer, &c., all costs shall be paid by the party convicted, but in all cases where such party shall have been discharged according to law without the payment of costs, the same shall be paid by the county.

And the Act of September 23d 1791 provides that in all cases where any person shall be convicted of any offence which shall be punished capitally, or by imprisonment at labour, the county where the crime hath been or shall be committed shall pay the costs of prosecution, if the defendant hath not property sufficient to discharge the same.

It has been the practice throughout the state to sentence parties convicted of crime to pay the costs of prosecution; but it is quite as general and uniform a practice to discharge prisoners from custody at the expiration of the time for which they were sentenced, without regard to whether the costs have been paid or not. Had Deibert served his time out in prison he would have been entitled to his immediate discharge, without the payment of the costs. Any other doctrine might result in perpetual imprisonment, and sentence to imprisonment one year would, in many cases, be equivalent to a sentence for life. The pardon in this case is in general terms, and the effect of the pardon is to acquit the offender of all the penalties annexed to the conviction, and to give him a new credit and capacity: Cope v. The Commonwealth, 4 Casey 297; Commonwealth ex rel. Johnson v. Halloway, 6 Wright 446; 7 Bacon's Abr. 416; United States v. Nathan Lukins, 3 Washington C. C. 335.

There were no private rights vested in the imprisonment of Deibert. The public alone had an interest in his imprisonment and punishment for the crime which he had committed, and by the 9th section of the 2d article of the Constitution, that public interest was liable to be divested by the governor. If the costs were not remitted by the pardon, Deibert still remains liable to pay them, and that liability may be enforced by action like any other legal right.

The opinion of the court was delivered, February 1st 1864, by AGNEW, J.

The facts in the stated case raise a single question, whether the keeper of the county prison could discharge a prisoner convicted of manslaughter, and sentenced to a term of imprisonment, and to pay a fine of six cents and the costs of prosecution, and to stand committed until the sentence be complied with, on the delivery of a pardon, and without the consent of the county commissioners, or any of the parties entitled to the costs.

The court entered judgment for the defendant upon the stated case, in effect deciding that the prisoner was entitled to an immediate discharge as to the costs. In this we think there was error. The grounds upon which the court below proceeded are unknown to us, no opinion being found upon our paper-books.

It is argued that there is no legal sentence for costs, because the Act of 23d of April 1829, revising the penal code, provides only the punishment by separate and solitary confinement for manslaughter. This is incorrect, the Act of 1829 merely providing this to be in lieu "of the penitentiary punishment heretofore prescribed," and expressly enacting, in the 6th section, that "all definitions, and descriptions of crimes, all fines, forfeitures, and incapacities, and the restitution of property or payment of the value thereof, and every other matter not particularly mentioned in this act, shall remain as heretofore." It never has been...