Ex parte Grayson

• Decision Date: 24 March 1913
• Citation: 61 So. 306,104 Miss. 242
• Court: Mississippi Supreme Court
• Parties: EX PARTE BILL GRAYSON

61 So. 306

104 Miss. 242

EX PARTE BILL GRAYSON

Supreme Court of Mississippi

March 24, 1913

March 1913

APPEAL from the circuit court of Smith county, HON. W. H. HUGHES Judge.

Petition of Bill Grayson for a writ of habeas corpus. From a judgment denying the writ, petitioner appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

B. W Sharbrough, for appellant.

The contention of the appellant is, that after he had satisfied the demand of the sheriff on the capias profinum, issued by the justice of the peace, immediately after the circuit court had dismissed the appeal with a writ of procedendo, he cannot be legally arrested and held on the same charge; neither had the justice of the peace the authority to issue a second capias profinum, and even though he did issue a second one the sheriff was without authority to arest and incarcerate appellant, when he had accepted and knew that he had accepted the promise of third persons in full settlement of the said fine and costs. It cannot be contended that the appellant was an escaped convict and that the sheriff had the right to arrest him and put him in jail, after he had satisfied the sheriff by giving a note of third parties, which had been accepted by the sheriff. It may be contended, however, that he sheriff had no authority to accept the said note in payment of the fine and costs, but if he did, then it is a matter with third persons and the sheriff.

The law prescribes the manner in which fines and costs shall be paid, and if a sheriff accepts the promise of third persons in settlement of a fine and costs, he does so at his own peril, and he becomes liable to the county for the amount of the fine and costs and must look to the person or persons on whose promise he acted. See Williams v. Mize, 72 Ga. 129; 19 Cyc. 548. This is what was done in this case and I respectfully submit that the appellant is entitled to be discharged from custody.

Geo. H. Ethridge, assistant attorney-general, for the state.

By section 4687 of the Code the sheriff is jailor of his county. By section 4692 of the Code it is made his duty to "receive and keep any prisoner committed by a justice of the peace according to the order of commitment." Section 355 of the Code required all fines and forfeitures to be charged to the sheriff, and it is made the duty of the clerk of the board of supervisors to require the sheriff to pay the amount into the county treasury. By section 870 of the Code of 1906, as amended by the Acts of 1908, chapter 168, page 185, it is required that each convict sentenced to imprisonment, or to pay a fine and cost shall work out the sentence in the manner provided in that chapter.

By section 1302 of the Code of 1906 it is made a misdemeanor for a sheriff or other officer to knowingly or wilfully fail, neglect, or refuse, to perform any duty required of him by law. It will be readily seen from these sections that the sheriff had no authority in law to take any note for the payment of the fine and cost; and that the note so taken was contrary to the public policy of the state, and that it was void and amounted to nothing. Section 1154 of the Code especially prohibits the sheriff from allowing persons to go at large or escape. Section 1155 especially provides that if any convict escapes, he may be rearrested. This section is in the following language: "1155 (1075) The Same.--Convicts recaptured and no credit given for time, etc. . . . If any convict, confined in the county jail or in the penitentiary for a criminal offense, shall escape therefrom, he may be pursued, retaken, and imprisoned again, notwithstanding the term for which he was sentenced to be imprisoned may have expired at the time he shall be retaken, and shall remain so imprisoned until he shall have served as a convict the entire length of time which he would have been required to so serve had he not escaped, and until tried for such escape, or until discharged, on a failure to prosecute therefor." See also section 1157 of the Code 1906; Fuller v. State, 57 So. 806; Hoggett v. State, 57 So. 811. I submit, therefore, that the case must be affirmed.

Wills & Guthrie, for appellee.

Our contention in this case is that when the sheriff accepted the note in question as security for the fine and cost and released the appellant, that the sheriff was then responsible for appellant and that the appellant was at that time nothing more nor less than an escaped convict, or that he was improperly discharged. We think that we have clearly shown to the court that the sheriff was without authority to accept such a note as security because the statutes of the state do not authorize it, and because such procedure cannot be lawful unless specifically authorized by statute,...