Murphy v. State

• Decision Date: 23 November 1926
• Citation: 250 P. 834,119 Or. 658
• Parties: MURPHY v. STATE.
• Court: Oregon Supreme Court

250 P. 834

119 Or. 658

MURPHY v. STATE.

Supreme Court of Oregon

November 23, 1926

Department 1.

Appeal from Circuit Court, Linn County; Percy R. Kelly, Judge.

Application by Ivan Murphy for a writ of habeas corpus. From an order denying writ and remanding petitioner to custody, he appeals. Reversed and remanded, with instructions.

Burnett J., dissenting.

Tom Garland, of Portland, for appellant.

L. G Lewelling, Dist. Atty., of Albany, for the State.

BEAN, J.

On the 27th day of February, 1925, Ivan Murphy pleaded guilty in the justice's court for district No. 1 Linn county, Or., to maintaining a nuisance, and was sentenced "To pay a fine of $500 and $5 costs, and, upon default in payment of such fine, to be imprisoned in the Linn county jail for a period of 250 days."

In pursuance of this sentence, Murphy served 102 days in jail. He then tendered to the justice of peace, the sheriff, and the county treasurer the sum of $301 in payment of the remaining portion of the fine and the costs, and demanded that he be released from custody, maintaining that the 102 days he had served should be applied to his fine at the rate of $2 a day, or a total of $204. Upon his release being denied, Murphy filed a petition for a writ of habeas corpus, and again tendered the $301 in full payment of the balance of his fine and costs. Upon the return of the said writ in the circuit court for Linn county, the court refused to order the sum received, and remanded the prisoner to the custody of the sheriff to be held pursuant to the original commitment. Murphy appeals to this court from said judgment.

Section 1577, Or. L., provides:

"A judgment that the defendant pay a fine must also direct that he be imprisoned in the county jail until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine; and in case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned."

A fine is defined as a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. 25 C.J. 1148. The statute provides how the sentence of a fine may be discharged in lieu of a money payment. It states that the judgment must direct that the party be imprisoned until the fine be satisfied; that the judgment must specify the extent of the imprisonment; and that the extent of the same must not exceed one day for every $2 of the fine. It further provides that omission to specify the same shall operate to require the defendant's imprisonment until said fine is satisfied at the rate of $2 per diem. In other words, the statute permits the performing of a sentence of a fine in two ways, one alternative being the payment of the fine in money, the other by serving the time in jail at a specified rate; either method being equally effective to secure the defendant's ultimate discharge. We see no good reason why days lain out in jail, at the prescribed rate, should not be applied pro tanto to reduce the fine. We fully agree with the holding in Harlow v. Clow, 110 Or. 261, 223 P. 541, cited by the respondent, to the effect, that the imprisonment for a failure to pay a fine is not unconstitutional as being an imprisonment for debt, forbidden by the Constitution, but a means of enforcing the payment of the fine. We believe, however, that the provisions of section 1577, Or. L. permit time served in jail at the rate specified by the judgment or statute to be applied toward the part satisfaction of the fine. We must hold, therefore, that the alternative of imprisonment may be reduced by the partial payment of the fine, and that imprisonment for a portion of the time may reduce the amount of fine to be paid.

The California statute is similar to that of Oregon. Section 1205, Deering's Penal Code of Calif. 1923. The following construction is given it:

"A defendant is entitled to his discharge upon payment of the fine. * * * And the courts, by judicial construction of the statute, have determined that, where he has served a portion of the term of imprisonment, he is entitled to his discharge upon payment of the balance of the fine, not satisfied by imprisonment at the rate specified." 8 Cal. Jr. § 488, p. 473, citing Ex parte Henshaw, 73 Cal. 486, 496, 15 P. 110; Ex parte Kelly, 28 Cal. 414; Ex parte Riley, 142 Cal. 124, 75 P. 665.

In Ex parte Kelly, supra, Mr. Chief Justice Sanderson said:

"There is no force in the point that the defendant is bound to satisfy the whole fine by imprisonment and cannot be allowed to pay the unsatisfied portion of his fine and be thereupon discharged from custody. For each day which he has or may hereafter pass in prison he is entitled to a credit of $2 upon his fine and he may at any time pay the sum then remaining unsatisfied and claim his discharge from custody."

Where, under the statute, the imprisonment operates as a satisfaction of the fine at a certain rate per day, the prisoner may at any time pay the sum remaining unsatisfied and claim his discharge. 25 C.J. 1160 § 26. Section 1577, Or. L., plainly authorizes the satisfaction of a judgment to pay a fine by imprisonment, at the rate of $2 for every day of confinement in jail.

There is no incongruity between this section and section 1579, providing for the docketing as a judgment in a civil action, and with like effect, as provided in section 205, of a judgment that the defendant pay money either as a fine or as costs and disbursements of the action or both.

Section 1579, together with section 205, simply provides an additional method of enforcement of the payment of a fine and costs. Section 205 does not, however, authorize the issuance of an execution, or the enforcement of such a judgment after the same has been satisfied either by payment or imprisonment for the required time. The law does not contemplate that a defendant shall expiate the offense of a misdemeanor more than once.

While Murphy was serving time in the county jail, he was subject to work on the county roads, or other public works, under the provision of section 3543 Or. L., giving the county court power to cause such convicts to perform such work. If the county court had exercised such authority, that section directs that--

"In the default of the payment of a fine such convict shall be made to labor at the rate of $2 per day until such fine is fully paid."

The county court would not be compelled to employ a guard, or make arrangements for working one prisoner, and, in the event that the county court does not require such work of a prisoner, it would not effect the time of sentence.

The case of Galles v. Wilcox, 68 Iowa, 664, 27 N.W. 816, appears at first glance to support the contention of the respondent, but the Iowa statute differs from ours.

The lower court erred in denying the writ of appellant, and the judgment is reversed, and the cause remanded, with instructions to enter judgment, allowing the writ and discharging the petitioner upon the payment of the balance of the fine tendered.

McBRIDE, C.J., and COSHOW, J., concur.

BURNETT, J. (dissenting).

Convicted of a misdemeanor, the petitioner, on February 27, 1925, was sentenced to pay a fine of $500 and $5 costs, and, in default of payment of such fine, to be imprisoned in the county jail not exceeding 250 days. Failing to pay the fine at once, he was incarcerated in the jail. On June 22, 1925, he claimed to have been there under such imprisonment 102 days, tendered to the sheriff and the county treasurer $301 in full satisfaction of his fine and costs, and demanded his release which being denied, he petitioned in habeas corpus. His writ was dismissed and he appealed.

Section 1577, Oregon Laws, reads thus:

"A judgment that the defendant pay a fine must also direct that he be imprisoned in the county jail until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine; and in case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned."

Section 1579, Oregon Laws, is here set down:

"A judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, must be docketed as a judgment in a civil action and with like effect, as provided in section 205 of the Code of Civil Procedure."

Section 1601, Oregon Laws, reads thus:

"A judgment in a criminal action, so far as it requires the payment of money, whether the same be a fine or costs and disbursements of the action, or both, in addition to the means in this chapter provided, may be enforced as a judgment in a civil action, as provided in title III of the Code of Civil Procedure."

Section 3543, Oregon Laws, provides that all convicts sentenced by any court to imprisonment in the county jail, whether in default of the payment of a fine or sentenced to a definite number of days of imprisonment, shall be under the exclusive control of the county court of the county in which the crime is committed. That court shall have the power to place such convicts under the control of any road supervisor or other person appointed to take charge of them and cause them to work upon the public roads of the county or perform such other work of a public nature as that court may direct. Provisions are made for the transfer of their custody to the person appointed to take charge of them and their return to the sheriff under certain circumstances....