Starry v. State

• Decision Date: 19 June 1902
• Citation: 90 N.W. 1014,115 Wis. 50
• Parties: STARRY v. STATE.
• Court: Wisconsin Supreme Court

115 Wis. 50

90 N.W. 1014

STARRY

v.STATE.

Supreme Court of Wisconsin.

June 19, 1902.

Syllabus by the Judge.

1. In a sentence, under the statutes, providing for punishment by fine and costs of prosecution and in case such fine and costs be not forthwith paid, that the prisoner shall be committed to the proper county jail until they are paid or until discharged by due course of law, the alternative element is primarily a mere means of enforcing the element of punishment, and whether the relation between the two elements be indicated by the word “or” or the word “and,” the statutory idea is embodied in the sentence with unmistakable clearness.

2. The provision of section 4633, Rev. St. 1898, requiring the time of the commitment of any person to jail for nonpayment of a fine and costs to be limited and not in any case to exceed six months, applies to every case where such a commitment is authorized under any statute.

3. A writ of certiorari is proper only to correct jurisdictional errors.

4. If a justice of the peace renders a judgment which he has no authority to render under any circumstances, he thereby commits a jurisdictional error, remediable by writ of certiorari.

5. Since the statute in mandatory terms requires, in case of a commitment to the county jail of a person for nonpayment of a fine and costs, that the time of the detention for such nonpayment shall be limited by the sentence and not exceed six months, a sentence by a justice of the peace wholly disregarding such statute is in excess of his jurisdiction, is illegal, and the error is remediable by writ of certiorari.

Error to circuit court, Iowa county; Geo. Clementson, Judge.

Frank F. Starry was convicted of selling liquor without a license, and brings error. Reversed.

Writ of error to review a judgment of the circuit court for Iowa county.

Plaintiff was convicted before a justice of the peace of Iowa county of having violated section 1550, Rev. St. 1898, by selling intoxicating liquor without a license, and sentence upon such conviction was pronounced as follows:

“It is therefore adjudged and determined that the said Frank F. Starry do pay a fine of one hundred dollars and the costs of the prosecution taxed at ninety-three dollars and forty-two cents ($93.42), or be committed to the common jail of this county till the said costs and fine be paid, or until he shall be discharged by due process of law.”

Plaintiff in error failed to pay the fine and costs and was for that reason committed in due form to the county jail of Iowa county, but the warrant of commitment was not executed. April 2, 1900, a writ of certiorari was sued out of the circuit court for said county to review the judgment, plaintiff in error claiming that it was void for uncertainty and for noncompliance with section 4633, Rev. St. 1898, which requires a justice, in committing a convicted person for nonpayment of a fine and costs, to limit the time of the imprisonment. Such proceedings were taken pursuant to the writ of certiorari that the judgment was affirmed. A writ of error was then sued out to bring the judgment and proceedings here for review.Spensley & McIlhon, for plaintiff in error.

E. R. Hicks, Atty. Gen., for the State.

MARSHALL, J. (after stating the facts).

It is claimed that the sentence is void for uncertainty; that it is in the alternative so that plaintiff in error could not know whether his punishment was payment of a fine of $100 and the costs of the prosecution, or confinement in the county jail for an indefinite term. Reliance is placed upon State v. Haas, 52 Wis. 407, 9 N. W. 9. There the sentence was that the prisoner should pay a fine of a specified amount or be confined in the county jail for 50 days. The decision rested on the fact that there was an independent provision of law authorizing punishment by a fine and costs, and another such provision authorizing punishment by confinement in the county jail for a specified term, and that the two parts of the sentence were stated in the alternative form. The latter feature is present in the sentence before us, but not the former. Only one kind of punishment authorized by the statute under which the prosecution was had (section 1550, Rev. St. 1898) is referred to in the sentence, notwithstanding it is worded in the alternative instead of the conjunctive form as the statute requires. That part of such section material to be considered is as follows:

“Shall be punished therefor by a fine of not less than fifty dollars nor more than one hundred dollars, besides the costs of suit; or in lieu of such fine by imprisonment in the county jail of the proper county not to exceed six months nor less than three months; and in case of punishment by fine as above provided such person shall, unless the fine and costs be paid forthwith, be committed to the county jail of the proper county until such fine and costs are paid or until discharged by due course of law.”

No provision is made, it will be seen, for confinement in the county jail in case of punishment by fine, except in connection therewith, and not as a part of the punishment, strictly speaking, but as a means of enforcing payment of the fine and costs--that is, of making the element of punishment effective. The sentence here varies from the wording of the statute, as before indicated, only in the use of the word “or” in place of “and.” The meaning would be the same whether the one word or the other were used. In either case the punishment inflicted would be the fine and costs, and the commitment to the county jail would be a mere means of enforcing payment, and of course would...