State v. Hebert
| Decision Date | 08 April 1924 |
| Docket Number | 26165 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. HEBERT |
Original Opinion of November 12, 1923, Reported at 158 La 209, 103 So. 742.
This case having been heard on rehearing by the entire court, we have concluded to adopt the views expressed in the dissenting opinion of Mr. Justice LAND handed down when the case was first heard before division A, as they appear more nearly in accord with the jurisprudence. In doing so, we also wish to point out the differentiating features of the cases cited by the Chief Justice, in support of the conclusion reached in the opinion delivered by division A. The three cases cited and relied upon by the Chief Justice are: State ex rel. Taquino v. Arnauld, Recorder, 49 La.Ann. 104, 21 So. 177; State v. Voss, 49 La.Ann. 444, 21 So. 596, 62 Am. St. Rep. 653; and State ex rel. Daubert v. Recorder, 52 La.Ann. 1079, 27 So. 589.
In Tarquino's Case the accused was charged with violating an ordinance of the city of New Orleans, the penal provision of which reads as follows:
"That whoever shall violate the provisions of thisordinance shall, upon conviction before the recorder within whose jurisdiction the offense is committed, be condemned by said recorder to pay a fine not to exceed twenty-five ($ 25.00) dollars, or imprisonment in the parish prison for a term not to exceed thirty days, or both, or imprisonment in said parish prison for a term not to exceed thirty (30) days in default of the payment of said fine; provided that the fine shall not exceed twenty-five ($ 25.00) dollars for each offense nor the imprisonment more than thirty (30) days."
The sentence imposed was to pay a fine of $ 25 and to serve 30 days in jail, and in default of paying the fine to 30 days additional imprisonment. This court simply held that the ordinance itself had in express terms, as indicated by the portions italicized above, limited the maximum period of imprisonment to 30 days.
In State v. Voss, 49 La.Ann. 444, 21 So. 596, 62 Am. St. Rep. 653, the ordinance under which Voss was prosecuted contained practically the identical provision quoted above in the Tarquino Case; but there the judge had imposed a sentence of $ 25 and 10 days' imprisonment, and in default of paying the fine 20 days more. It was held that the limits of the ordinance had not been exceeded. The defendant had attacked the said penal section, claiming that it was ultra vires and illegal, because it permitted a greater imprisonment than 30 days for violating an ordinance of the city of New Orleans, and which was the limit fixed by the statute of the Legislature; and the court quotes the very language italicized above as fixing this limitation by the ordinance itself in conformity with the act.
And in State ex rel. Daubert v. Arnauld, the recorder had imposed a fine of $ 25 and 5 days in jail, with additional jail sentence of 25 days in default of paying the fine. The court held, as in Tarquino's Case, the maximum imprisonment could not exceed 30 days, because the statute (143 of 1898) authorizing the city council to pass penal ordinances permitted punishment "by fine and imprisonment, or both, or by imprisonment in default of the payment of the fine," but in no case is the fine to exceed $ 25 and the imprisonment, all told, to exceed 30 days.
It will be noted that in all three cases both the statute in its limitation, and the ordinances, make specific provision for the failure to pay the fine, but expressly limit the imprisonment under all circumstances to 30 days.
In the case now before this court, involving the interpretation of section 3 of Act No. 39 of 1921, no such alternative to enforce payment of the fine is found in the statute. Nor is there any such express limitation as appears in the ordinances and statutes considered in the cases just above referred to. Hence we think the lower court was correct in resorting to Rev. St. 980, in imposing an alternative jail sentence for failure to pay the fine.
For the reasons assigned, our former decree is set aside, and the conviction and sentence appealed from are affirmed.
O'NIELL C. J. (dissenting).
Writing a dissenting opinion cannot change the result in this case because the court did not reserve to the defendant the right to apply for a rehearing, when the case was decided against him, on the rehearing that was granted to the state. But the court's ruling in the case, with regard to section 980 of the Revised Statutes, seems to me so very wrong that I am impelled to do what I can to see it corrected some day.
In the first opinion handed down in this case, I failed to cite the decision in State v. Ryder, 36 La.Ann. 294; and it was also overlooked by the court and council while the case was pending on rehearing. I believe that the court would have followed the ruling in that case if we had been reminded of it before the ruling in this case became final. Ryder was convicted of the crime of inflicting a wound less than mayhem, and was sentenced to pay a fine of $ 500 and to be imprisoned for the term of 2 years, "and in default of said fine at the expiration of said sentence, to suffer additional imprisonment at hard labor in the state penitentiary for one year, and to pay all costs." This court held that the sentence of imprisonment was illegal in so far as the term exceeded the maximum term allowed by the statute denouncing the crime of inflicting a wound less than mayhem. The court said:
In the opinion handed down by Justice DAWKINS, in this case, it is said that the court has adopted the dissenting opinion that was handed down by Justice LAND, and that the court desired also "to point out the differentiating features of the cases cited by the Chief Justice in support of the conclusion reached in the opinion delivered by Division A." Justice DAWKINS quotes the penal clause of the ordinance that was violated in one of the three cases which I referred to (which were all alike), to show that the ordinance itself put a limit upon the fine and the term of imprisonment that could be imposed for a violation of it. In that respect, there was no difference between the ordinance and the Hood Act, except that the language of the ordinance was redundant. It declared -- as quoted by Justice DAWKINS -- that the penalty was a fine not exceeding $ 25 or imprisonment for a term not exceeding 30 days, or both the fine and imprisonment, and then it repeated:
"Or imprisonment in said parish prison for a term not to exceed thirty (30) days in default of the payment of said fine; provided that the fine shall not exceed twenty-five ($ 25) dollars for each offense, nor the imprisonment more than thirty (30) days."
The writer of the ordinance, manifestly, having made it complete, was yet determined to work in exactly the language of the statute (Act 41 of 1890, p. 33, limiting the city's power of enforcing ordinances), which was itself somewhat redundant, viz.:
"By fine or imprisonment, or both, or by imprisonment in default of the payment of the fine; provided, that the fine shall not exceed twenty-five dollars for each offense, nor the imprisonment [be] more than thirty days, as provided by section 12 of Act 131 of 1877."
The expression "or by imprisonment in default of the payment of the fine," after the statement "by fine or imprisonment, or both," is sheer tautology. It means simply that the penalty shall be a fine not exceeding $ 25 or imprisonment for a term not exceeding 30 days, or both the fine and imprisonment, within those limits, in the discretion of the judge. The language cannot have any other meaning.
In this case, also, the statute (section 3 of Act 39 of 1921, as quoted in my original opinion and in Justice LAND'S dissenting opinion) limits the term of imprisonment that may be imposed in default of the payment of the fine.
The statute is very plain in this respect -- and we all agree upon it -- that, for violating the statute, otherwise than by selling intoxicating liquor, or manufacturing or having it for sale, the guilty party shall be fined not more than $ 500, or be imprisoned for a term not less than 10 nor more than 30 days, "or may be both fined and imprisoned," within those limits, "at the discretion of the court."
I adhere to our original ruling, that section 980 of the Revised Statutes, declaring that every...
To continue reading
Request your trial