State ex rel. Owens v. Barnes

The Chief Justice delivered the opinion of the court: This is an original proceeding for mandamus, in which the relator sets forth that as County Solicitor for the.Criminal Court of Record for Duval county, he filed at the February term, 1888, three several informations, one against Dave Holmes charging him with gambling in a gambling house, one against Joseph Welch charging him with vagrancy, and the third against George White charging him with trespass with malicious intent; that Holmes pleaded guilty, whereupon the court ordered that sentence be suspended upon payment of costs by him; that Welch also pleaded guilty, and the court simply ordered that sentence be suspended; and that White was tried and convicted by verdict, but the court set the verdict aside and granted him a new trial. The Clerk of the Court gave a certificate that the said parties have been convicted in the said court, of the offences charged against them, and that they have not paid the conviction lees of the relator, and that the Sheriff of the county has made return that said defendants have not sufficient goods and chattels from which said fees can be made. Said certificates having been presented to the respondent, as Comptroller, and demand made that he should — 157 — audit the same, he refused to do so, wherefore relator prays for a writ of mandamus commanding said Comptroller forthwith to audit the claim. Upon motion for the writ, respondent resists on the ground that the relator is not entitled to conviction fees in the cases mentioned, as those cases now stand, according to the facts of the petition. No objection having been interposed to the proceeding, because of its purpose to control the discretion of the Comptroller, we understand each objection is waived, and we proceed to consider the case on that understanding. The only question we have to decide is whether the relator was entitled to conviction fees from the State before final disposition of the cases by sentence or judgment. Section 14, Chap. 3731, Acts 1887, provides that “the County Solicitors shall be paid three dollars per diem, and receive the same conviction fees that are now paid to the State’s Attorneys in like cases, to be paid quarterly by the State in like manner as the per diem and conviction fees of the State’s Attorneys are now paid, and the said conviction fees shall be paid in cases -when new trials are granted and appeals taken, the same as in other eases of convictions.” The act of 1883, Chap. 3459, fixes the conviction fees of State Attorneys, and the relator contends that the term “conviction” means the ascertainment of the guilt of a party, either by a plea of guilty or by the verdict of a jury. In its ordinary sense, and perhaps technically correct sense, that is its meaning. The law dictionaries so give it. Blackstone (Book 4, 362,) says: If the jury find (the prisoner) guilty he is then said to be convicted of the crime whereof he stands indicted; which conviction may be in two ways—either by his confessing the offence and pleading guilty or by his being found so by the verdict of his country.” In Commonwealth vs. Lockwood, 109 Mass., 323, it is said: The ordinary legal meaning of convic — 158 — tion,’ when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while judgment or sentence is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.” There are numerous other authorities to the same effect, some of which are cited in this case, but it is needless to multiply them here. On the other hand, there are numerous authorities that hold the judgment or sentence to be a necessary component part of “ conviction'” — that is, that the use of the word in a constitution, or statute or judicial decisions may be in such connection as to show that judgment or sentence was to be included in it. This is admitted in the case of Commonwealth vs. Lockwood, supra, in which Judge Cray says: “When indeed the word ‘conviction’ is used to describe the effect of the guilt of the accused as judicially proved in one case, when pleaded or given in evidence in another, it is sometimes used in a more comprehensive sense, including the judgment of the court.” In Smith vs. The Commonwealth, 14 Sergt. & Rawls, 69, the defendant was sentenced to imprisonment for life on a charge of having committed a second burglary. The statute under which he was indicted provided “that if a man shall commit burglary a second time, and be thereof legally convicted, lie shall be sentenced to undergo imprisonment at hard labor during life.” The indictment charged that he was convicted on a former indictment, and the court gave judgment. It was held that his sentence was error, the court saying: “It does not appear in this indictment what judgment was given on the former indict — 159 — ment. It is indeed set forth that the defendant was convicted on a former indictment, and the court gave judgment. But what that judgment was is not said. Where the law speaks of conviction it means a judgment, and not merely a verdict, which in common parlance is called a conviction.” In Commonwealth vs. Gorham, 99 Mass., 420, the court says: “ The term ‘ conviction’ is used in at least two different senses in our statutes. In its most common use it signifies the finding of the jury that the prisoner is guilty ; but it is very frequently used as implying a judgment aud sentence of the court upon a verdict or confession of guilt.” The Code of Illinois “ declares that each and every person convicted of any of the crimes therein enumerated, of which larceny is one, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office, * * of voting at any election, of serving as a juror and of giving testimony.” In Faunce vs. The People, 51 Ill., 311, where the question was whether under that statute a witness who had been convicted of stealing goods, but had not been sentenced, should be permitted to testify. The court held that he should not, summing up its conclusion in a head-note of the case thus: “It cannot be said that a person has been convicted of a crime, so as to render him incapable of giving testimony within the meaning of the (Code) until there has been a judgment- rendered on the verdict of guilty.” See also Gallagher vs. The State, 10 Texas, Ct. App., 469; Blanfus vs. People, 69 N. Y., 107; Keithler vs. State, 10 Smedes & M., 192. Without referring to other cases, it will be seen from those we have cited that the use of the word “ conviction,” often implies a judgment or sentence, as well as the verdict of a jury. It is so used in our Constitution in section 2, — 160 — article IV, which empowers the Governor, “ in cases of conviction for treason, * * to suspend the execution of sentence until the case shall be reported to the Legislature also in section 12 of same article, which authorizes the Governor, Justices of the Supreme Court and Attorney-General, to “ remit fines and forfeitures, commute punishment and grant pardons after conviction;” and also in section 5, of article VI, which gives power to the Legislature to enact laws to exclude from office and from the right of suffrage, “all persons convicted of bribery, perjury, &c., * * * bat the legal disability'shall not accrue until after trial and conviction by due form of law.” Recurring now to the statute which allows to County Solicitors the same conviction fees as to State Attorneys, to be paid “ in like manner ” as conviction fees of the latter officers are paid, we are to ascertain the sense in which the word conviction is there used. It .must have the same sense it has as used in regard to State Attorneys. The second section of the statute as to them is this: “ That in all cases of conviction under criminal charges in the Circuit Courts, the conviction fee of the State Attorney shall be taxed with the costs in the case, and paid by the defendant; Provided,, That if the defendant does not pay the same, and by the return of the Sheriff it be shown that the said fee of the State Attorney cannot be made out of the goods and chattels of the convicted defendant, the conviction fee of the State Attorney shall be paid by the State, to be audited by the Comptroller, and paid by the Treasurer, upon the presentation of the certificate of the Clerk of the court in which the conviction is made, showing that the conviction has been made, the nature thereof, that the defendant has not paid the conviction fee, and that the Sheriff has made a return showing that the convicted defendant has not suf — 161 — ficient goods from which the said fee of the State Attorney can be made.” It is very plain that this statute contemplates a sentence' of the court as necessary to entitle the State Attorney to a conviction fee. The costs are not taxed till the sentence is giveu,and the defendant is not required to pay till they are taxed. Then if he fails to pay the Sheriff must make return that the fee cannot be made out of his goods and chattels before the State can be called on to pay, and sued return could only be made on an execution, which never issues unless specially authorized by statute, before final judgment. It follows that “ conviction, ” as used in this statute, includes a sentence of the court, and the same meaning must be given to it in the statute allowing the fee to-the County Solicitor. But this latter statute contains a clause not to be found-in the former, which, it is suggested, may make a difference between the two. It is this: “ The said conviction fees shall he paid in cases when new trials are granted and appeals taken, the same as in other cases of conviction.”' By this it could not have been intended that a conviction by the verdict of a jury entitled the Solicitor to his fee, notwithstanding the grantiug of a new trial or the taking of an appeal, because tobe paid the “same as in other cases of conviction,” excludes the idea of such intention.. We have seen that in “ other cases” there can be no demand for payment by the State until after judgment or sentence, and the failure of the defendant to pay, followed by a return of the Sheriff that the defendant has no goods- -or chattels out of which the fee can be made. There can be nothing of this kind before the final disposition of the case. Hence we think the more correct construction of this clause would be to say that the conviction fee should — 162 — abide the result of the case the “ same as in other cases.” Else if on a new trial, whether after the grant lug cl a now trial, or after reversal or appeal, there should he an acquittal, the state of things would be one in which the prerequisites to a charge against the State did not exist, no mode of getting payment from the State in such case being provided. But if, on the new trial, there should be another conviction, resulting in a sentence, thou the Solicitor shall have his fee, the "same as in other cases” — that, is, one conviction fee. The motion for a mandamus is denied.