Mullin v. State
| Decision Date | 11 August 1937 |
| Citation | 38 Del. 533,194 A. 578 |
| Court | Delaware Superior Court |
| Parties | FLOYD MULLIN, Defendant Below, v. THE STATE OF DELAWARE, on complaint of Ralph F. Williams, Const. Sussex County, Delaware, Plaintiff Below |
Superior Court for Sussex County, June Term, 1937.
Certiorari to the record of a Justice of the Peace, concerning a charge of driving under the influence of intoxicating liquor.
The record of the Justice in this case is as follows:
To this record a number of exceptions have been filed which, for practical purposes, may be treated in two classes:
1. That the sentence is in the alternative or ambiguous, and therefore erroneous.
2. That the imposition of a sentence of six months in jail for the non-payment of the fine was a sentence for a period in excess of that which was authorized by the statute in this State in such cases.
The pertinent statutes of this State as shown by the sections of the Code of 1935 are:
Section 5681. "Every person who is convicted of a violation of Section 81 of this Chapter, relating to * * * driving while under the influence of intoxicating liquor * * * shall be punished for the first conviction by a fine of not less than One Hundred Dollars ($ 100.00) nor more than Five Hundred Dollars ($ 500.00), or by imprisonment for a term of thirty (30) days, or both such fine and imprisonment."
Section 4461. "Every person who shall be committed to any jail or workhouse of the State, in default of the payment of any fine imposed and costs arising in any proceeding before the Municipal Court of a city or a Justice of the Peace in this State, except fines for contempt, shall be discharged at the expiration of twenty days if the fine be under five dollars forty days if the fine be five dollars and under ten dollars and sixty days if the fine be ten dollars or over, from the date of such commitment; and it shall be the duty of the keeper of the jail or workhouse to write on the back of every such commitment the date of the delivery of the person to his custody, and at the expiration of the periods of time above mentioned, if the fine and costs be not sooner paid, to discharge such persons from imprisonment."
Tunnell and Tunnell for the Defendant Below.
Caleb M. Wright for the State.
OPINION
The correctness of the argument of the Defendant Below that a sentence can neither be in the alternative or ambiguous is, of course, admitted by the State. The question is whether the sentence is either ambiguous or in the alternative. In my opinion it is neither. A fair inspection of the entire record shows that the Justice imposed a sentence of 30 days in jail and a fine of $ 200.00 and costs, and that the Justice also imposed a term of imprisonment of six months for the non-payment of the fine and costs.
Whether the Justice had the power to impose this particular term for the non-payment of the fine and costs is the sole question for my determination and involves a construction of the pertinent statutes and this can best be had by a study of the statutes and amendments from the time of their enactment.
Section 5681 of the Code of 1935 can be dismissed from further consideration, as this statute merely prescribes the penalty after his conviction of the offense of driving a motor vehicle under the influence of intoxicating liquor, a fine of $ 100.00 to $ 500.00, or imprisonment for 30 days, or both fine and imprisonment. Both were imposed, and the fine not being paid the sole question relates to the entirely distinct imprisonment for the non-payment of the fine and costs.
Section 4461 of the Code of 1935 () simply provides for the length of time a person shall serve in commutation of a fine and costs imposed by a Municipal Court or a Justice of the Peace. There is no power in the Municipal Court or Justice of the Peace to fix the term of imprisonment, but this term is expressly declared by the statute itself. The statute had its origin in 1879 (Vol. 16, c. 138, p. 201) which provided a fixed term of thirty days for the non-payment of a fine and costs imposed by a Mayor of the city or Justice of the Peace. This was amended in 1881 (Vol. 16, c. 529, p. 701), which struck out the fixed term of 30 days and substituted the graduated term according to the amount of the fine, as we have it today. This was continued in the Code of 1852 as amended to 1893, at page 977 (16 Del. Laws c. 138) and in the Code of 1915, as Section 3961, with the exception that for "Mayors of cities" the expression was changed to "Municipal Courts." In this form it now appears as Section 4461 of the Code of 1935. As stated, there nowhere appears in any of these statutes any power in the Justice of the Peace to fix a term for the non-payment of a fine and costs. The term of six months fixed by the Justice in the present case is in excess of the sixty day maximum provided by the statutes above mentioned.
We must now consider Section 5303 of the Code of 1935, as set out in the statement of facts. This statute had its origin in 1826 (Vol. 6, c. 362, p. 742) where the Court, in the event of the non-payment of a fine, was given power to dispose of such delinquent person as a servant for a term not exceeding seven years, where such disposition was no part of the punishment itself (See Code of 1829, page 147).
In 1829 a statute was passed (Vol. 7, c. 130, p. 247) (Code of 1829, p. 359) which gave Justices of the Peace power to fine in cases of assault and battery and provided that the defendant, in case of such fine, should be committed until payment. This statute was amended in 1837 (Vol. 9, c. 46, p. 63) giving the Court of General Sessions power in cases of such commitment to dispose of the prisoner for a term not exceeding one year, and also power to discharge a white person if it appeared that he was unable to pay the fine.
The foregoing was the situation in 1852 when a new Code was adopted which by Section 2926 for the first time consolidated the provisions relating to convictions before the Court of General Sessions and Justices of the Peace, and provided that in the case of a white person failing to pay a fine that the Court should make an order that such person be imprisoned for the term of three months and then discharged; in the case of a negro or mulatto person that such person be sold for a term not exceeding seven years.
When the Revised Code was amended in 1874, all discrimination between white persons and negroes was omitted (Probably pursuant to the amendment of the Federal Constitution), and it was provided on page 795 (c. 33, § 10) that if any person was unable to pay a fine the Court should make an order that he be imprisoned for a term not exceeding three months, then discharged.
In 1881 it was provided by Vol. 16, c. 549, p. 717, that if no order had been made by the Court at the term or a succeeding term, that the Resident Judge should have power to make the order, on proof of the defendant's inability to pay the fine.
In 1903 a statute (Vol. 22, c. 469, p. 986) struck out the term of "three months" as a maximum term for the non-payment of a fine, and substituted the term of "one year," and in this form the statute became Section 4815 of the Code of 1915.
In 1934 the statute was again amended (Vol. 34, c. 238, p. 546) by adding a...
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Frabizzio v. State
...pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. Vitelli v. Wilmington, 39 Del. 336, 9 W.W.Harr. 336, 344, 199 A. 283. The payment of this defendant fits that definition exactly, and the fact that the amount was less than the statutory min......
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Dooley v. Rhodes
...statute became § 4461 of the Revised Code of 1935. Consequently the magistrate had no authority himself to fix the term. Mullin v. State, 38 Del. 533, 194 A. 578. But the statute was omitted from the Code of 1953, and hence repealed. 1 Del.C. § 103. The petitioner contends that there is now......