Kennedy v. People

• Decision Date: 26 September 1887
• Citation: 13 N.E. 213,122 Ill. 649
• Parties: KENNEDY and another v. PEOPLE.
• Court: Illinois Supreme Court

122 Ill. 649

13 N.E. 213

KENNEDY and another

v.PEOPLE.

Supreme Court of Illinois.

September 26, 1887.

Error to circuit court, Lee county; J. M. BAILEY, Judge.W. & W. D. Barge, for plaintiffs in error.

C. B. Morrison and W. P. Briggs, for defendants in error.

MAGRUDER, J.

Plaintiffs in error were jointly indicted with their brother, James Kennedy, at the October term of the Lee county circuit court, A. D. 1884, for an assault with a deadly weapon upon one James Minnihan. After new trial granted, the case was tried a second time at the September term, 1886, of the same court. Plaintiffs in error were found guilty of an assault, and James Kennedy was found not guilty. The judgment of the court was that John Kennedy pay a fine of $40; that Daniel Kennedy pay a fine of $25; and that they ‘pay the costs of this proceeding, to be taxed by the clerk of this court, and that they stand committed to the common jail of said Lee county until said fine and costs are paid.’ The statute of this state under which this judgment was rendered is as follows: ‘Where a fine is inflicted, the court may order, as a part of the judgment, that the offender be committed to jail, there to remain until the fine and costs are fully paid, or he is discharged according to law.’ Rev. St. 1885, c. 38, § 452; Div. 14, § 14.

Counsel for plaintiffs in error urge a reversal on the ground that the provision of the statute here quoted is in conflict with section 12 of article 2 of the constitution of this state, which says that ‘no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’ It is claimed that the costs of the proceeding are a debt due to the officers of the law, and that therefore plaintiffs in error could not be imprisoned until such debt was paid. We have held that the prohibition of the constitution applies to actions upon contracts, express or implied. Its design is to relieve debtors from imprisonment who are unable to perform their engagements. They are exempt from arrest if they act in good faith towards their creditors. The prohibition does not extent to actions for torts, nor to fines or penalties arising from a violation of the penal laws of the state. It has reference to debts arising ex contractu. People v. Cotton, 14 Ill. 414;McKindley v. Rising, 28 Ill. 337;Rich v. People, 66 Ill. 513. In the latter case it was said: ‘As to the debts intended to be embraced, there must be the relation of debtor and creditor.’ The liability of a convicted party to pay the costs in a criminal proceeding does not arise out of an implied contract. The costs are fixed by the statute. They are the creature of the law. They are incident to the prosecution of the proceeding, and grow out of it. They follow the judgment and are a part of it.

This precise question was before the supreme court of Alabama in Morgan v. State, 47 Ala. 34. In that case the appellant was convicted of assault and battery, and fined, and ‘judgment was rendered for the fine and the costs of the prosecution,’ under a statute which provided that ‘if the fine and costs are not paid, etc., the defendant must either be imprisoned in the county jail, or, at the discretion of the court, sentenced to hard labor for the county,’ etc. Appellant paid the fine, but refused to pay the costs, and was thereupon sentenced. The court there say: ‘Counsel insists * * * that the cost in such case is a debt, and the constitution declares ‘that no person shall be imprisoned for debt.’ In this the counsel is mistaken. In criminal cases the cost is no more a debt than the fine, and, accurately speaking, not as much so, for the fine is a sum certain in numero, and the cost is not.' Caldwell v. State, 55 Ala. 133;Hill v. State, 2 Yerg. 247;Downing v. Herrick, 47 Me. 462;Sheehy v. Insurance Co., 2 C. B. (N. S.) 211, 89 E. C. L. 211; Ex parte Howard, 26 Vt. 205;County of SchuylkillReifsnyder, 46 Pa. St. 446; U. S. v. Walsh, 1 Abb. (U. S.) 66.

In Brown v. People, 19 Ill. 613, it was said: ‘The only question in this case is whether a justice of the peace who has imposed a fine for a contempt of his court can imprison the party till the fine and costs are paid. Of this power we have no doubt. * * * It was within the power of the justice, and it was his duty, to imprison the party guilty of the contempt, till the fine and costs were paid.’ Ex parte Bollig, 31 Ill. 88.

Bishop, in his work on Criminal Procedure, (volume 1, § 1321, 3d Ed.) says: ‘It is a farmiliar practice in civil causes that costs taxed against a defendant of whom damages are recovered become ‘parcel of the damages,’ enforceable in the same way with the rest. Hence, by analogy, as one ordered to pay a fine or provide sureties of the peace is by the sentence ordered to stand committed until he complies, so should be one condemned to pay costs as a part of his punishment. It is so in perhaps the greater number of the states; in others, this order is deemed unauthorized.' See, also, People v. Foster, 104 Ill. 156;In re Ebenhack, 17 Kan. 618.

We are of the opinion that the statute complained of is not unconstitutional. It can work no hardship, as section 455, c. 38, Rev. St., provides that whenever it is made satisfactorily to appear to the court, after all legal means have been exhausted, that any person who is confined in jail for any fine or costs of prosecution for any criminal offense, has no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of the court to discharge such person, etc.

The indictment in this case contained four counts. The first count charges an assault with a deadly weapon, ‘the kind, nature, or further description of which is to the said grand jurors unknown,’ with the intent to inflict upon the person of William Minnihan a bodily injury, no considerable provocation then and there appearing. Rev. St. c. 38; Div. 1, § 25; Tarpley v. People, 42 Ill. 340;Curtis v. People, Breese, 256; Lamkin v. People, 94 Ill. 501;Severin v. People, 37 Ill. 414. The second count is the same as the first, except that each of the parties indicted, to-wit, the plaintiffs in error and James Kennedy, are charged with making the assault, ‘each with a deadly weapon, to-wit, a sharp piece of metal; a further description of said deadly weapons, or either of them, is to the said grand jurors unknown.’ The third and fourth counts contain the words, ‘the circumstances of the assault showing abandoned and malignant hearts,’ and omit the words, ‘no considerable provocation appearing.’ The third describes the assault as being made ‘with certain deadly weapons, the number or a description of which is to the said grand jurors unknown.’ The fourth describes the assault as being made ‘with certain sharp-edged deadly weapons, the number of which, or a further description of which, said deadly weapons, is to the grand jurors unknown.’ The verdict of the jury found the plaintiffs in error guilty of an assault. It is claimed that they could not be convicted of an assault under the indictment.

An assault is a misdemeanor. Circuit courts have original jurisdiction in cases of misdemeanor. Young v. People, 6 Bradw. 434;Wilson v. People, 94 Ill. 426. All offenses cognizable in said courts are prosecuted by indictment. Rev. St. 1885, c. 38, § 349; Div. 10, § 3. Where a party is put on...