Halfacre v. State

• Decision Date: 27 February 1904
• Parties: HALFACRE v. STATE.
• Court: Tennessee Supreme Court

79 S.W. 132

HALFACRE v. STATE.

Supreme Court of Tennessee.

February 27, 1904.

Error to Circuit Court, Putnam County; W. T. Smith, Judge.

John Halfacre was convicted of a misdemeanor. The court declined to accept the security offered for the fine and costs, and sentenced him to the workhouse, and he brings error. Affirmed.

R. B. Capshow, for plaintiff in error. The Attorney General, for the State.

NEIL, J.

The plaintiff in error was convicted of a misdemeanor in the circuit court of Putnam county, and was fined one cent, and taxed with the costs of the cause. Thereupon he offered to secure such fine and costs, one of the attorneys of the court who was solvent, and good for the amount, expressing a willingness to become such surety, and tendering himself with the plaintiff in error. The court declined to accept the attorney as surety, and, the plaintiff being unable to procure any one else, he was sentenced to the workhouse to work out the fine and costs. Thereupon he appealed to this court, and has assigned errors.

The statute bearing upon the question is found in Shannon's Code, § 7214, which reads as follows:

"In cases where a fine is assessed, the court may allow the defendant to confess judgment for the fine and costs, with good sureties."

The word "may" in statutes usually indicates that the act to which it refers is discretionary, rather than mandatory, and will be so construed unless the context indicates a different meaning.

The section immediately following the one just quoted reads as follows:

"7215. If the fine and costs are not paid, or the judgment confessed, according to the provisions of the preceding section, the defendant shall be imprisoned until the fine and costs are paid, or he is otherwise discharged by law."

Construing the two sections together, we are of the opinion that section 7214 is mandatory, and that the prisoner, in a case to which the statute applies, has always the right to bring with him proper sureties, and that upon the confession of judgment by himself and sureties before the court for the fine and costs he must be discharged.

The refusal of his honor was based upon chapter 48, p. 89, Acts 1903, which reads as follows:

"That hereafter it shall be unlawful for any attorney practicing in the courts of this state, to sign any bond, or enter into any recognizance, as surety, for the appearance of any defendant or defendants in any criminal case pending against such defendant or defendants in said courts.

"Sec. 2. Be it further enacted, that any attorney violating the provisions of the foregoing sections shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than twenty-five ($25.00) dollars, nor more than fifty ($50.00) dollars."

It is obvious that this statute does not cover a case like the present — the confession of judgment for a fine and costs — but only to bonds and recognizances for the appearance of a defendant for trial. It is due to the learned circuit judge to say that at the time he refused to accept the attorney in the manner above stated the act (as we are informed by counsel) had not been published, and he had been misinformed as to its terms.

It is insisted for the state, however, that the case is not properly here; that the surety should have been tendered to the clerk,...