In re Newton

• Decision Date: 28 January 1892
• Parties: IN RE NEWTON.
• Court: Alabama Supreme Court

10 So. 549

94 Ala. 431

IN RE NEWTON.

Supreme Court of Alabama

January 28, 1892

Application by the state, on the relation of the solicitor of Montgomery county, of a certiorari, mandamus, or other remedial writ. Denied.

Wm. L. Martin, Atty. Gen., and Tennent Lomax, for relator.

Sayre & Pearson, contra.

CLOPTON J.

This proceeding is an application by the state, on the relation of the solicitor of Montgomery county, for a certiorari mandamus, or other remedial writ, requiring the judge of the city court of Birmingham to certify and return for revision, by this court, the proceedings under a writ of habeas corpus, applied for and obtained by Nancy E H. Newton, on the hearing of which she was released, and discharged from the performance of hard labor, to which she had been sentenced by the city court of Montgomery. The judge having returned the proceedings in his answer to the rule nisi, the case comes before the court for decision on the merits. At the February term, 1891, of the city court of Montgomery, Mrs. Newton was indicted for assault with intent to murder; and on March 27, 1891, was convicted of assault and battery, and a fine for $500 assessed by the jury. Immediately after the rendition of judgment for the fine, she took an appeal therefrom, and entered into bond with sureties, for her appearance to abide the judgment of this court. The judgment of conviction having been affirmed, Mrs. Newton appeared in the city court of Montgomery, July 27, 1891, when a judgment, reciting the conviction, assessment of the fine, the appeal, and affirmance, was rendered as follows: "And the said fine and costs of this prosecution not being presently paid or otherwise secured, and the said defendant, being asked by the court if she had anything to say why sentence of the law should not now be pronounced against her, says nothing, it is therefore considered by the court, and it is the judgment and sentence of the court, that the said defendant perform one hundred and forty days' hard labor for the county of Montgomery in payment of said fine, and, the costs of the prosecution being now ascertained and amounting to seventy-three dollars and seventy cents, it is further considered by the court that the said defendant perform an additional term of eight months' hard labor for Montgomery county in payment of said costs, at the rate of thirty cents per diem." The sentence to hard labor was imposed under sections 4503 and 4504 of the Code. The first provides that, if the fine and costs are not paid or a judgment confessed according to the provisions of section 4502, the defendant must either be imprisoned in the county jail, or, at the discretion of the court, sentenced to hard labor for the county for a specified number of days, proportioned to the amount of the fine; and the second authorizes the imposition of an additional term of hard labor as may be sufficient to pay the costs, at a rate of not less than 30 cents for each day, but not to exceed 8 months in cases of misdemeanor. The question is whether the sentence to hard labor for payment of the fine and costs, having been imposed at a term of the court subsequent to the term at which the...