State v. Clark

• Citation: 143 La. 481,78 So. 742
• Decision Date: 29 April 1918
• Docket Number: 23071
• Court: Supreme Court of Louisiana
• Parties: STATE v. CLARK

78 So. 742

143 La. 481

STATE v. CLARK

No. 23071

Supreme Court of Louisiana

April 29, 1918

Rehearing Denied May 27, 1918

SYLLABUS

(Syllabus by the Court.)

A writ of certiorari and prohibition will not issue to the judge of the juvenile court, where it appears that defendant has been ordered to pay alimony to his child, to furnish a guaranty or conditional, bond, and, in default of furnishing said bond, to be held for further proceedings and orders of the court.

Robert H. Marr, of New Orleans, for applicant.

A. V. Coco, Atty. Gen., and C. C. Luzenberg, Dist. Atty., and E. Stanley, Asst. Dist. Atty., both of New Orleans (V. A. Coco, of New Orleans, of counsel), for the State.

OPINION

SOMMERVILLE, J.

The record shows that relator was found guilty, March 28, 1918, of failing to provide for the support of his minor child, and that he was ordered to pay $ 25 on the 1st and 15th of each month for one year, beginning April 1, 1918, for the support of said child; that he failed to pay the amount ordered by the court on April 1st; that a rule for a new trial was filed April 3d; and a rule was filed, April 4th, for defendant to show cause why the judgment of the court should not be executed. The rules for a new trial and to show cause were tried on April 11th, a new trial was refused, and the rule to show cause was --

'made absolute, and I [the judge] order defendant to furnish a guaranty bond, with security, in the sum of $ 600, to guarantee future alimony; in default of furnishing guaranty bond, defendant to be held for further proceedings and orders of this court.'

The record continues, on the same day:

'Defendant and his counsel retired from the courtroom and returned in a few minutes.'

Then:

'By Mr. Marr: After talking with Mr. Clark, I am informed that he cannot furnish a guaranty bond, and now give notice of my intention to apply to the Supreme Court of the state of Louisiana for writs,' etc.

Relator represents in his petition to this court that:

'Upon refusal of a new trial, a bill of exceptions thereto being reserved, Hon. Andrew H. Wilson, judge of said court, thereupon ordered your relator into custody and to stand committed until your relator should furnish a bond in the sum of $ 600, conditioned upon the payment of $ 50 per month as alimony to said child for the space of one year. Now your relator shows that he is altogether unable to furnish bond for the payment of said alimony, and has so informed Hon. A. H. Wilson, judge as aforesaid, and relator shows that said judge persisted in his said order and stated that your relator would stand committed to the parish prison until said bond should have been furnished. Now your relator shows that said order is a sentence to perpetual imprisonment, and is a cruel and unusual punishment imposed upon relator for failure to furnish a bond, which said order is contrary to the Constitution of Louisiana, and to the Constitution of the United States, and it is beyond the power and authority of any court to impose, and, in particular, beyond the power and authority of said judge to commit to prison until a bond for the payment of money should have been furnished.'

The ruling complained of was not made in connection with the motion for and refusal of the new trial, but in connection with the rule to show cause why the judgment should not be executed, which two rules were tried at the same time.

In ordering that a guaranty or conditional bond should be furnished by defendant the court did not exceed its authority, and in ordering that 'in default of furnishing guaranty bond defendant be held for further proceedings and orders of this court' the court did not impose a cruel or unusual punishment upon relator, or condemn him to perpetual punishment. It is usual, in the trial of criminal cases, for the judge to remand the defendant until the bond fixed by the court is furnished.

The amount of the bond was fixed, and thereupon 'defendant and his counsel retired from the courtroom and returned in a few minutes,' and counsel 'informed' the court that defendant could not furnish a guaranty bond. He had not apparently tried to furnish the bond; and he did not apply to the court to relieve him from furnishing the bond for any reason whatever.

Relator should have exhausted his remedies for relief in the trial court before he came to this court for relief from the orders of that court.

If relator had made request of the trial court for relief, that request would doubtless have been considered. The judge says in his return:

'Respondent makes this statement to your honors candidly and unreservedly of his intention to give defendant a full and early and prompt hearing on any matters that he desires to present for consideration, if it be Clark's ability or nonability to furnish a bond, which he ought to present to the court, or his request for sentence because of his nonability to furnish a guaranty bond. In either event he is entitled to a hearing, and should ask for it in either connection before he seeks the power and authority of your honors.

'In connection with defendant's conduct, respondent states that Clark made no effort to obtain a guaranty or conditional bond, as it is termed. His retirement from the court and return were almost immediate; and, although he had already furnished three appearance bonds with apparent ease, his counsel immediately stated Clark's inability to comply with this order. This conduct of Clark has little bearing on the question of his legal rights, which he may assert in the juvenile court, and of which he has not been and will not be deprived, but it does serve to illustrate his attitude towards the court and his little child.'

The judge further answers:

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