Vigouroux v. State

• Decision Date: 03 November 1924
• Docket Number: 24302
• Citation: 101 So. 576,136 Miss. 505
• Court: Mississippi Supreme Court
• Parties: VIGOUROUX v. STATE. [*]

101 So. 576

136 Miss. 505

VIGOUROUX v. STATE. ^[*]

No. 24302

Supreme Court of Mississippi

November 3, 1924

Division A

CRIMINAL LAW. Fine and imprisonment, and peace bond imposed, held not cruel nor inhuman punishment, nor excessive fine.

The defendant was convicted of the unlawful sale of intoxicating liquors, and sentenced to pay a fine of five hundred dollars and, ninety days' imprisonment, and was also required to give a bond in the sum of one thousand five hundred dollars with sufficient sureties to be approved by the clerk of the court, to "keep the peace and be of good behavior" for two years from the date "of the judgment, as authorized by section 1561, Code of 1906 (Hemingway's Code, section 1323). The defendant urged that the sentence of the court was violative of section 28 of the Constitution, prohibiting the infliction of cruel or inhuman punishment, or excessive fines. Held, that the sentence of the court was not violative of said provision of the Constitution.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Jackson county, HON. D. M. GRAHAM Judge.

Clarence Vigouroux was convicted of the unlawful sale of intoxicating liquors, and he appeals. Affirmed.

Affirmed.

Bullard & Bullard and F. S. McInnis, for appellant.

The sentence imposed on the defendant is a clear violation of section 28 of the state constitution, providing: "Cruel or inhuman punishment shall not be inflicted, nor excessive fines be imposed." Section 1561 (Code of 1906) provides for the peace bond. The statute does not require sureties but provides that it may be with, or without, sureties. Unless it be held that this clause confers discretion on the court to require sureties or not, as he may determine, the sentence in absolutely requiring sureties, goes beyond the authority conferred by the statute, and is therefore void. If it be held that the statute does vest such discretion in the court, then both the statute and the sentence is violative of the above section of the constitution.

The requirement of the bond is to regulate his whole conduct for two years in so far as his conduct would be amenable to the law. Admitting that he can give the bond, the commission of any misdemeanor whatever would be a breach of it. Suppose in an unguarded moment he should be provoked into a violation of the laws against profanity, or the commission of any petty misdemeanor, the existence of this bond would, in addition to the penalty prescribed, impose a penalty of fifteen hundred dollars, even though the prescribed penalty might be a fine of not over ten dollars. In other words, requiring him to give this bond, as part of his sentence in this case is to make him furnish against himself a penalty thereof of one thousand five hundred dollars in addition to the maximum provided by law as a punishment for any misdemeanor he might commit within two years. Would that not clearly be an unusual punishment? If so it would be within the condemnation of the constitution.

But it is hardly thinkable that he could give any such bond, with good and sufficient sureties. If not, the effect of it is to sentence him, for the sale of a half pint of whiskey, to pay a fine of five hundred dollars, and to be imprisoned in the county jail for two years, in addition thereto. Would not such punishment be cruel? Would it not be cruel to the extent of being positively shocking? If so, it violates the constitution.

We have not been able to find any decisions directly in point. But it is submitted that the case should be reversed on the foregoing propositions.

E. C. Sharp, Assistant Attorney-General, for the state.

The sentence complained of, or rather that part of the sentence complained of, was imposed by the court by virtue of section 1323, Hemingway's Code, being section 1561, Code of 1906. Under the statutes of Mississippi, a prisoner cannot be confined in the county jail for more than two years and it was held in the case of Ex Parte McInnis, 98 Miss. 773, that, imprisonment in the county jail or upon a prison farm for a period of two years did not violate section 28 of the Constitution.

Twice before section 1323, Hemingway's Code, has been before this court for adjudication, and in each instance the right of the trial court to impose a sentence in accordance with said section was upheld, provided the sentence was imposed at the time of the imposition of the regular penalty for the violation of which appellant was convicted. Buck v. State, 103 Miss. 276, 60 So. 321; Jackson v. Belew, 110 Miss. 243, 70 So. 346.

This case should be affirmed.

Bullard & Bullard, and F. S. McInnis, for appellant, In reply.

The assistant attorney-general is mistaken in the application of the two decisions he cites with reference to section 1561 Code of 1906. In neither of those decisions was the validity of section 1561, brought in question. In fact so far as we have been able to find this is the first time the constitutionality of that section has been brought in question. In Buck v. The State, it was merely held that a bond to keep the peace and be of good behavior could not be required at a subsequent term after sentence was passed, but the authority of the court under the section in question to require the bond at all was not brought in question. In City of Jackson v. Belew, it was held that the section was in addition to the one preceding and in no way affected by it; but again the...