State v. White

• Decision Date: 12 June 1915
• Parties: STATE v. WHITE.
• Court: Tennessee Supreme Court

177 S.W. 478

132 Tenn. 203

STATE v. WHITE.

Supreme Court of Tennessee.

June 12, 1915

Appeal from Circuit Court, Crockett County; Thos. E. Harwood, Judge.

Arch White was convicted of unlawfully buying for another intoxicating liquors within four miles of a schoolhouse, and he appeals. Affirmed.

W. H Swiggart, Jr., Asst. Atty. Gen., for the State.

FANCHER J.

The defendant, Arch White, was convicted of the offense of unlawfully buying for another intoxicating liquors within four miles of a schoolhouse, which is a violation of Acts 1905, c. 422. Judgment was rendered upon the verdict of the jury that the defendant pay a fine of $30 and the costs of the case.

The judgment recites that the "court declines to assess any confinement of the defendant," to which action of the court in refusing to assess at least as many as 30 days' confinement, according to said act of 1905, the Attorney General on behalf of the state excepted and prayed an appeal to the present term of this court. Section 1 of said act is as follows:

"Be it enacted by the General Assembly of the state of Tennessee, that hereafter it shall be unlawful for any person to buy for another any intoxicating liquor from any person within four miles of any schoolhouse, public or private, in Tennessee, where a school is kept, whether the school be then in session or not, and that any one violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine, for each offense, of not less than ten dollars nor more than one hundred dollars, and imprisonment for a period of not less than thirty days nor more than six months, at the discretion of the court."

It is stated in the brief of the Attorney General for the state at large that he is of opinion that the trial judge was correct in determining that the imposition of a jail sentence upon the defendant was within his (the trial judge's) discretion, and not mandatory. However, for the purpose of having the statute construed and the matter determined, the Attorney General assigns as error the action of the trial judge in declining to assess an additional punishment of confinement in the county jail.

We think the trial judge construed the act properly, and that the matter of imprisonment is at the discretion of the court.

This act provides for a fine of not less than $10 nor more than $100, and imprisonment for a period of not less than 30 days nor more than 6 months, at the discretion of the court.

Now what is meant in this statute by the expression "at the discretion of the court?" It was unnecessary to say that the assessment of a fine from $10 to $100 was in the discretion of the court, because that is implied, and it is not usual in statutes to add the unnecessary provision that the assessment of the amount of the fine is at the discretion of the court when the act states a maximum and minimum fine. Nor was this expression necessary to make clear that the fixing of the term of imprisonment from 30 days to 6 months was at the discretion of the court, because the mere statement of a maximum and a minimum imposed a discretion on the court.

These words were not added to the statute for the purpose of putting the discretion in the judge, instead of the jury, for the reason that under such construction this act would be violative of article 6, § 14, of the Constitution, which provides that no fine shall be imposed on any citizen of this state that shall exceed $50, unless it shall be assessed by a jury of his peers. This act provides for a fine as high as $100.

It is well settled that the court will in cases of doubt give that construction to an act which will sustain its validity and constitutionality, instead of destroying it, when this can reasonably be done.

The fine must be assessed by the jury if it is fixed at over $50.

So the word "court," as here indicated, is not a designation of the presiding...