Ex parte Meyers

• Decision Date: 04 August 1933
• Docket Number: 8594.
• Citation: 24 P.2d 1011,55 Okla.Crim. 75
• Parties: Ex parte MEYERS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

24 P.2d 1011

55 Okla.Crim. 75

Ex parte MEYERS.

No. 8594.

Court of Criminal Appeals of Oklahoma

August 4, 1933

Rehearing Denied Sept. 8, 1933.

Syllabus by the Court.

1.A large discretion is vested in the Legislature in the fixing of penalties designed to prevent the commission of certain prohibited acts; and the penalty imposed by statute will not be held unconstitutional as excessive unless it is so excessive as to shock the sense of mankind.

2.Fines and costs assessed as part of the penalty on conviction become part of the judgment, and, if unpaid, must be satisfied by further imprisonment, as provided by section 6332,C. O. S. 1921.

Application by Frank Meyers for a writ of habeas corpus.

Writ denied.

J. M Roberts, of McAlester, for petitioner.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

CHAPPELL Judge.

PetitionerFrank Meyers, alleges, in substance, that he was convicted of the crime of driving an automobile while under the influence of intoxicating liquor, and was sentenced to serve one year in the penitentiary and to pay a fine of $1,500 and costs; that he has served the term of imprisonment as specified in the judgment and is now being held in the penitentiary for service of the fine and costs at the rate of $1 per day, it being provided in the judgment that he be confined at that rate until the fine and costs were paid; that he is a pauper and has no money with which to pay the fine and costs; that the punishment provided for the crime of which he was convicted, to wit: "Any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by a fine of not more than $2000.00, or by both imprisonment and fine," means that the court or jury may assess imprisonment or fine as punishment, but that both such fine and imprisonment should not exceed one year.

Petitioner was prosecuted under chapter 16, section 3, Session Laws 1923.The provisions of this statute are not ambiguous, and it clearly appears to have been the legislative intent that a person convicted under such statute might be imprisoned in the penitentiary for a maximum period of one year, or he might receive a maximum fine of $2,000, or, in the discretion of the court and jury, both the maximum fine and the maximum imprisonment might be assessed if the court or jury thought such punishment fitting to the case.

It is contended that the provisions providing such punishment are unconstitutional as being in violation of section 9, article 2, Constitution, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted."

The answer to petitioner's contention is found in McMahon v. State,70 Neb. 722, 97 N.W. 1035, where that court said: "A large discretion is vested in the Legislature in the fixing of penalties designed to prevent the commission of certain prohibited acts; and a penalty imposed by statute will not be held unconstitutional as excessive, unless it is so excessive as to shock the sense of mankind."

To the same effect are: Ellis v. State(Okl. Cr. App.)19 P.2d 972;Doyle v. Commonwealth,100 Va. 808, 40 S.E. 925;State v. Constantino,76 Vt. 192, 56 A 1101;Territory v. Ketchum,10 N.M. 718, 65 P. 169, 55 L. R. A. 90;State v. Apple,121 N.C. 584, 28 S.E....