State ex rel. Romero v. Allen

The opinion of the court was delivered by Miller, J. The relator, sentenced by the lower court to pay a fine for refusing to work on the public roads, or be imprisoned for thirty days, complains that the sentence is in excess of the jurisdiction of the court; that he has no remedy by appeal, and asks relief at our hands by the issue of writs of prohibition and certiorari. The proceedings against the relator, resulting in the sentence, were under the act of the Legislature No. 112 of 1880, amending the section of the Revised Statutes relative to public roads. The act provides that for the failure to work on the roads when required, as prescribed in the act, the penalty incurred shall be a fine, and in default of payment, imprisonment not exceeding five days. The sentence was undoubtedly, in excess of the power of the court to impose, but the judge, in his return, states the sentence as pronounced was in accordance with the law, but was erroneously entered on the minutes. Of course, we are restricted to the record in our examination of the case. However, the record shows no attempt in the lower court to correct the error in the sentence. If the excess of the punishment over that allowed by the statute had of been brought to the notice of the court, we can not doubt the error would [1601] have been corrected. We think this a proper case to apply the rule that on these applications the relief will be refused unless the opportunity is afforded the lower court to correct the error, the basis of complaint. In this case we are bound to presume an application to correct the minutes so as to show the proper sentence would have accomplished the object of the application to us. The State ex rel. J. L. Smith vs. The Judge of the Eighteenth District Court, parish of St. Tammany, 38 An. 920; State ex rel. J. A. Shakespeare, Mayor, vs. Judge Civil District Court, Division " E,” 40 An. 607. It is therefore ordered, adjudged and decreed that the relator’s petition be dismissed at his costs.