In re Lackey

Decision Date09 February 1895
Citation62 N.W. 134,6 S.D. 526
PartiesIn re LACKEY.
CourtSouth Dakota Supreme Court

Syllabus by the Court.

1. The law does not authorize a justice of the peace to commit a defendant for the nonpayment of costs, which are no part of the fine imposed as a penalty for his offense.

2. A justice in a criminal trial for a misdemeanor imposed a fine of $10, and $54.60 costs, and entered judgment that the defendant stand committed until the fine and costs should be paid. Held, that so much of the judgment as provided that the defendant stand committed until the costs should be paid was unauthorized, and that, after five days' imprisonment the defendant was entitled to be discharged.

Alfred Lackey applies for a writ of habeas corpus. Denied.

H. E Dewey, for petitioner.


This is an application to this court for a writ of habeas corpus. It appears from the petition that the petitioner was convicted in a justice's court of Lawrence county of a misdemeanor and adjudged to pay a fine of $10 and costs, taxed at $54.60 and that, in default of payment of said fine and costs, it was further adjudged that he be imprisoned in the county jail of said Lawrence county, for the term of 32 days; that more than 5 days, the limit of time for the fine of $10, have elapsed since his said imprisonment; that he is now held in custody for the costs adjudged against him; and that the sheriff of said Lawrence county asserts the right to hold him for the balance of the period of 32 days, unless said costs are paid. We are of the opinion that the judgment for costs and the imprisonment of petitioner for the same are clearly unauthorized, and that the petitioner is therefore entitled to the writ. The Justices' Code very clearly defines the judgment that may be rendered in a justice's court in a criminal action. Sections 6167, 6168, Comp. Laws, provide as follows: "When the defendant pleads guilty, or is convicted, either by the court or by a jury, the court must render judgment thereon, of fine or imprisonment, or both, as the case may be." "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, in the proportion of one day's imprisonment for every two dollars of the fine." It will be observed that the judgment may be for a fine or imprisonment, or both, and that a defendant may be imprisoned for the fine, but that no costs are provided for. Section 6173 provides...

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