State v. Sullivan

• Decision Date: 15 April 1890
• Citation: 24 P. 23,9 Mont. 490
• Parties: STATE v. SULLIVAN.
• Court: Montana Supreme Court

24 P. 23

9 Mont. 490

STATE v. SULLIVAN.

Supreme Court of Montana

April 15, 1890

Appeal from district court, Deer Lodge county; D. M. DURFEE, Judge.

W. S Shaw, Co. Atty., and Henri J. Haskell, Atty. Gen., for the State.

John F Forbis, for respondent.

HARWOOD J.

Both parties to this action appeal. The defendant was indicted for an assault upon one John Maze, with intent to commit murder. Upon the trial the jury returned the following verdict "We, the jury, find against the defendant on his plea of former acquittal, and that he is guilty of a simple assault, and fix his punishment at a fine of fifty dollars,"--whereupon the court pronounced judgment against the defendant that he "pay the fine of fifty dollars assessed by the jury in said above cause, and, further, that he pay the costs of this prosecution." The record shows that the defendant paid said fine of $50 when the judgment was pronounced, but did not pay the costs of prosecution. The state, by its attorney, then moved the court for an order that defendant be committed to the county jail until said costs were paid. On the hearing of this motion, after argument of counsel for both parties, the court overruled said motion on the ground, as stated by the court "that it appears that there is no law to imprison a defendant for the non-payment of costs in such a case; and the defendant was thereupon ordered discharged." To that ruling the state excepted, and by bill of exceptions reserved the question of law involved in said ruling and the same is assigned by the state in its appeal herein as error.

We will consider this branch of the appeal first. The section of our statute defining the crime of assault, and providing the punishment therefor, (Comp. St. Crim. Laws, § 58,) is as follows: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another; and every person convicted thereof shall be fined in a sum not less than five nor more than fifty dollars." The defendant's counsel insists that, inasmuch as the law defining the crime of assault, and providing the punishment therefor, does not include the costs as part of the fine or punishment, the defendant cannot be lawfully imprisoned for non-payment of costs, but that such costs may be enforced as in a civil judgment, as provided by section 410, Crim. Prac. Act. After a careful review and analysis of the various provisions of the statute defining crimes and punishments, and the manner of entering and enforcing judgments for costs in criminal actions, we conclude that the point on the part of the defendant is well taken, and that the order of the court should be sustained in this particular case. We question, however, that it should be so, even in this case, and under the same statute, if the defendant had been convicted of a simple assault in a justice court, or had been convicted in the district court on appeal from the justice court. It will be observed that the statute governing the practice in criminal cases in the justice court, and in cases appealed from that court to the district court, provides as follows, (section 508, Crim. Prac. Act:) "In all cases of conviction under the provisions of this chapter, the court shall enter his judgment for the fine and costs against the defendant, and may commit him until the judgment is satisfied, as in cases in the district court." See, also, sections 514, 515, 517, Crim. Prac. Act. These general provisions as to costs are confined to "cases of conviction under the provisions of this chapter," which applies to cases commenced in the justice court. We do not find any such general provision applying to all cases of conviction in the district court, requiring the costs to be made part of the penalty. It follows that in cases originally commenced in the district courts, where the statute does not make the costs part of the punishment for the crime of which the party is convicted, there is no provision of statute authorizing imprisonment for non-payment of costs. There is provision, however, for enforcing the judgment for costs as in civil actions. Section 410, Crim. Prac. Act. The statute frequently in defining crimes and punishments provides that persons convicted thereof shall be fined or imprisoned, or both," with costs of prosecution," or "together with costs of prosecution," as in the cases provided for in sections 65, 147, 148, 179, 262, 265, and others of Crim. Prac. Act. In such cases, the costs are made part of the fine or punishment, to be enforced in the same manner as the fine under the provisions of section 368, Crim. Laws. In the case at bar, the crime of which defendant was convicted is not declared by statute punishable by fine and costs; hence there is no law authorizing imprisonment in that case for non-payment of costs alone.

We will now proceed to consider and determine the matter assigned as error by the defendant as appellant. It appears from the defendant's bill of exceptions that the indictment upon which defendant was convicted, as above stated, charged him with the crime of assault upon one "John Maze," with intent to commit murder. On his arraignment, the defendant entered a plea of "not guilty," and of "former acquittal of the offense charged." Upon the trial defendant offered in evidence a former indictment charging him...