State v. Kirby

• Decision Date: 28 March 1910
• Citation: State v. Kirby, 96 Miss. 629, 51 So. 811 (Miss. 1910)
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. JEREMIAH M. KIRBY

51 So. 811

96 Miss. 629

STATE OF MISSISSIPPI v. JEREMIAH M. KIRBY

Supreme Court of Mississippi

March 28, 1910

March 1910

FROM the decision of HON. G. GARLAND LYELL, Chancellor, on habeas corpus, liberating Kirby, appellee, from confinement in the jail of Lawrence county. The state appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed.

George Butler, assistant attorney-general, for appellant.

S. B Waddell, for appellee.

[The briefs of counsel were withdrawn or lost from the record when it reached the reporter, hence no synopses of them is given.]

OPINION

MAYES J.

Kirby was convicted of unlawfully selling intoxicating liquors by the circuit court of Lawrence county, and sentenced to serve three months' imprisonment in the county jail and to pay a fine of $ 500. He served one month of his sentence of imprisonment, but paid no part of the fine. After serving one month, he made application to the board of supervisors to discharge him, under section 3, c. 109, of the Laws of 1908. The application in all respects complied with the requirements of the section, and the board ordered his release. Afterwards the circuit judge of the district ordered Kirby rearrested and imprisoned, in order to compel him to serve out the sentence imposed by the court. After Kirby was arrested as above, and while in custody thereunder, he applied for a writ of habeas corpus, and was released under the writ on the ground that the board has ordered him discharged under the section above referred to.

The particular question presented is as to the constitutionality of the above section of the act, which is as follows: "If any convict, when he otherwise ought to be put to work, should be unable to labor from bodily infirmity apparently permanent, the board of supervisors may discharge him from the jail after the expiration of thirty days from the date of sentence. But in no case shall a convict be discharged, unless there be produced to the board a certificate of the sheriff, a physician, and another reputable person as to such infirmity, and the sheriff shall make the fine, costs, and jail fees out of the property and effects of the convict, if he have any."

It is claimed on the part of the state that the above section of the act violates section 124 of the Constitution of the state, in that it constitutes a pardon by the board of supervisors, a power which is...