Johnson v. State

• Decision Date: 20 April 1911
• Citation: 172 Ala. 424,55 So. 226
• Parties: JOHNSON v. STATE.
• Court: Alabama Supreme Court

55 So. 226

172 Ala. 424

JOHNSON v. STATE.

Supreme Court of Alabama

April 20, 1911

Appeal from Geneva County Court; E. F. Ellsberry, Judge.

Noah Johnson was convicted of selling spirituous, vinous, or malt liquors contrary to law, and he appeals. Affirmed.

W. O Mulkey, for appellant.

R. C Brickell, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was indicted and convicted for selling spirituous vinous, or malt liquors contrary to law.

The record shows a minute entry, reciting that upon the verdict of the jury finding the defendant guilty, and assessing a fine of $50, the court "ordered and adjudged that the state of Alabama, for the use of Geneva county, have and recover of the defendant the sum of fifty dollars, the fine assessed by the jury, together with all the costs in this behalf expended, for which execution may issue." Immediately following this is the recital, "Comes the defendant in open court and pays the fine and costs to the clerk, and is discharged."

1. This court has often criticised judgments of conviction in criminal cases for omitting to formally adjudicate the fact of the defendant's guilt. Nevertheless the omission has been sanctioned, where the judgment entry contains a sentence to hard labor, or confinement in the penitentiary, as vesting by necessary implication upon a concurrent adjudication of guilt. Driggers v. State, 123 Ala. 46, 26 So. 512; Wilkinson v. State, 106 Ala. 23, 17 So. 458. The judgment entry in the present case, while in form only for the recovery of the amount of the fine and costs assessed, is in effect a sentence upon the defendant to pay that amount. And, within the principle of the above cases, we think the entry shows a valid judgment.

2. Upon the theory that defendant's payment of the fine and costs adjudged against him, followed by an order of discharge from custody, was a waiver of the right of appeal, or a release of errors, there is a motion to dismiss the appeal. The precise question thus presented has not, it seems, been heretofore considered by this court, though authorities from elsewhere are not wanting.

In 12 Cyc. pp. 807, 808, the general rule, as deduced by the editor from the cases cited, is thus stated: "As the appellate court will not determine a purely speculative question, it will not consider an appeal from a sentence which has been acquiesced in. Hence the accused, by voluntarily paying the fine imposed on him, waives his right to appeal, or to have a review by certiorari."

With one exception, the opinions in the cases cited in support of the rule quoted, taken from some half dozen jurisdictions, offer no discussion of the question, and furnish no reason for the conclusion announced, other than that the payment determined the issues, or ended the case.

The exception noted in State v. Westfall, 37 Iowa, 575, from which we quote: "Courts, aside from the exceptional case of an appeal taken under the statute by the state, do not determine mere abstract questions. If the judgment in this case had been one of imprisonment, and the defendants had served out the period of imprisonment, it seems clear that they could not afterward prosecute an appeal from the judgment, for the reason that they could derive no benefit from a reversal. By voluntarily paying a fine imposed upon them, they stand in the same relation to the law as they would have done if they had served their period of imprisonment. All that can be said for them is that they have paid money in mistake of their legal rights. If the money need not have been paid, they have clearly made a mistake of law. If, upon this appeal, the judgment should be reversed, they could not recover it, and hence they could derive no benefit from the appeal."

The case of State v. Burthe, 39 La. Ann. 328, 1 So. 652, was based upon a rule of practice which denied the right of appeal to a party who had acquiesced in the judgment by executing it voluntarily. But where the payment was not voluntary, it had no such effect. State v. Brown, 29 La. Ann. 862.

In State v. Conkling, 54 Kan. 108, 37 P. 992, 45 Am. St. Rep. 270 (not cited in the Cyc. note), where the defendant had paid the fine under protest, declaring he reserved the right of appeal, the appeal was dismissed; the court saying: "It appears that the sentence of the law has been executed, and nothing is left for further controversy. By his own act Conkling satisfied and discharged the judgment entered against him. His protest and attempt to reserve the right of appeal are unavailing. The statute does not provide for nor comtemplate an appeal from a discharged judgment. Neither payment nor protest was necessary to protect his rights. Under the statute the judgment of conviction which was entered against him would have been stayed by the mere taking of an appeal, without any order of the court or the giving of a bond."

In this state "any person convicted of a criminal offense * * * may appeal from the judgment of conviction to the Supreme Court." Code, § 6244. In misdemeanor cases, upon notice to the trial court of intended appeal, although the judgment of conviction must be entered, execution thereof must be suspended pending the appeal. Code, § 6250. During such time the defendant may give bail and be temporarily discharged, but failing to do this he must be committed to jail.

It thus appears that a defendant who has been convicted of a misdemeanor must, although he appeals, either give the bail prescribed by the statute or satisfy the judgment (if it can be satisfied), or be committed to jail. We find nothing in our statutes regulating appeals which might indicate that, where the punishment imposed is the payment of money, its payment by the defendant, before or pending appeal, is a waiver or relinquishment of that right. We are therefore free to adopt that rule which is most consonant with justice, and most in accord with the general principles of the law.

Although there are a few cases to the contrary, the rule is nearly universal in civil cases that mere payment of a judgment, or obedience to the mandate of the court, works no waiver of the right of appeal, and so this court has held. Duncan v. Wares, 5 Stew. & P. 119, 24 Am. Dec. 772; Ex parte Walter, 89 Ala. 237, 7 So. 400, 18 Am. St. Rep. 103; Nixon v. Bolling, 145 Ala. 277, 40 So. 210. As lucidly shown in Mayor, etc., ads. Riker, 38 N. J. Law, 225, 20 Am. Rep. 386, the rights of a party so paying or performing are quite different from the ordinary case of payment under a mistake of law. In a note to State v. Conkling, supra, Mr. Freeman has collected a large number of cases, including both civil and criminal, and he there takes occasion to criticise the doctrine of State v. Westfall, 37 Iowa, 575, and several other cases in line with it, as being unsound and erroneous in principle.

The crux of the discussion seems to lie in the variant conceptions of what is to be deemed a voluntary payment or acquiescence. The approved rule in civil cases is well stated in Richeson v. Ryan, 14 Ill. 74, 56 Am. Dec. 493: "If the judgment had been collected by execution, there would not be a doubt of the right of Richeson to prosecute the writ of error. A payment under such circumstances would be compulsory, and would not preclude him from afterwards reversing the judgment, if erroneous, and then maintaining an action to recover back the amount paid. The payment in question must equally be considered as made under legal compulsion. The judgment fixed the liability of Richeson, and he could only avoid payment by procuring its reversal. He was not bound to wait until payment was demanded by the sheriff. He was at liberty to pay off the judgment at once, and thereby prevent the accumulation of costs. By so doing he did not waive his right to remove the record to this court, for the purpose of having the validity of the proceedings tested and determined."

And to the same effect the Iowa court itself has said: "Suppose a judgment is rendered against a party, and he cannot give security to supersede its enforcement while he prosecutes an appeal, and an execution is therefore issued, and his property is about to be sold under it--his homestead, it may be. Now, can it be claimed that, if he shall pay off the judgment, he is thereby deprived of an appeal? Surely this...