Judgment, Confession of, Imprisonment in County Jail, Etc. offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine; but, if in their judgment, the defendant should only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of the punishment to the court. The jury may simply render a verdict of guilty or they may assess a fine in addition, but in either event, the court must impose the punishment of imprisonment in county jail or hard labor for the county, if such punishment be imposed. If the jury should impose fine and inflict punishment, the punishment inflicted would be a mere surplusage.-Martin v. State, 125 Ala. 64 (28 So. 92). On plea of guilty as to a misdemeanor, the punishment is fixed by the court.-Drake v. State, 60 Ala. 42. The jury and the court have a large discretion as to kind and amount of punishment of some offenses, this is in recognition of the truism that no two criminal acts are precisely the same in point of guilt and that each may involve some element of aggravation or extenuation peculiar to itself.-Golson v. State, 86 Ala. 601 (5 So. 799). Some statutes leave the imposition of the fine in the discretion of the jury, yet allow the court to impose additional imprisonment or hard labor.-Bibb v. State, 84 Ala. 13 (3 So. 711). Verdict of guilty, where a fine is fixed by law, as in revenue cases, will authorize sentence of imprisonment.-McPherson's case, 54 Ala. 221. But a verdict of guilty merely will not authorize court to impose a fine. Melton's case, 45 Ala. 56; Spicer's case, 105 Ala. 123 (16 So. 706); Nelson's case, 46 Ala. 186. Verdict of guilty, imposing fine and attempting to impose hard labor, good as to fine, the rest being surplusage.-Taylor's case, 114 Ala. 20 (21 So. 947). ARTICLE 5. JUDGMENT, CONFESSION OF, IMPRISONMENT IN COUNTY JAIL, OR HARD LABOR FOR FAILURE TO PAY FINE AND COSTS. 7631-7635. SECTION. cases. SECTION. 7634. On default in payment of fine and costs, imprisonment or hard labor imposed. 7635. When additional hard labor imposed for costs; rules in reference to. 7631. (5422) (4501) (4457) (3762) (215) Prosecutor taxed with costs may confess judgment; else imprisoned ten days.— When the costs are imposed on the prosecutor, he may confess judgment for the same, with good and sufficient sureties; and, failing to do so, or to pay the same presently, must be imprisoned in the county jail, or sentenced to hard labor for the county for ten days. (Clay's Digest, p. 441, § 22.) 7632. (5423) (4502) (4454) (3759) (212) Confession of judgment by defendant for fine and costs.-When a fine is assessed, the court may allow the defendant to confess judg ment, with good and sufficient sureties, for the fine and costs. (Clay's Digest, p. 441, § 22.) Court may allow defendant to confess judg ment with good and sufficient sureties for the fine and costs and execution Judgment, Confession of, Imprisonment in County Jail, Etc. may issue therefor, or any portion remaining unpaid as in civil cases.-Goldsmith v. Huntsville, 120 Ala. 182 (24 So. 509). Judgment for fine and costs on appeal from mayor's court or municipal court.-Goldsmith v. Huntsville, 120 Ala. 182 (24 So. 509). On a confession of judgment under this statute, sureties do not become liable for sheriff's fees for feeding defendant while in jail, such is not a part of the fine and costs within the meaning of the statute. Ex parte State, 121 Ala. 327 (25 So. 563). This was formerly a part of the costs, but not so now; it was changed by § 4872 of the Code of 1886; see, also, Bradley v. State, 69 Ala. 318; Ex parte State, 121 Ala. 327 (25 So. 563). Power of court at subsequent term to sentence defendant to hard labor to pay costs; judgment imposing punishment cannot be pronounced by piecemeal. Ex parte State, 94 Ala. 431 (10 So. 549). When sentence to pay costs at the rate of not less than thirty cents each day and not to exceed eight months in cases of misdemeanors.-Ex parte State, 94 Ala. 431 (10 So. 549); statute now changed. Prior to the Code of 1896 a married woman could not confess judgment as surety for fine and costs.-Tanner v. State, 92 Ala. 53 (9 So. 531). This is probably changed by § 4492 (2526) of the Code. Fees of officers as part of fine and costs.-Bailey v. State, 87 Ala. 44 (6 So. 398). Confession of judgment is not a release of errors or bar to an appeal.-Burks v. State, 74 Ala. 399. Costs in criminal cases not a debt within the meaning of the constitution. Morgan v. State, 47 Ala. 34. Confession of judgment release of error, when.-Hearn's case, 62 Ala. 218. Where several are jointly indicted and convicted, separate judgments rendered against each.-McLeod's case, 35 Ala. 395. For fine and forfeiture against wife, husband must be party to judgment and equally amenable, etc.-Rather's case, 1 Port. 137, 138. On appeal in misdemeanors, prisoner released on confessing judgment; vacated by reversal.-Burke's case, 71 Ala. 377. As to sureties, confession of judg ment a civil liability.-State v. Allen, 71 Ala. 543; Hearn's case, 62 Ala. 218. But as to the principal, property not exempt from execution, etc.-State v. Allen, supra. Presumption of waiver of exemption as to sureties, etc.-Hearn's case, supra. It is not error for court to refuse to limit costs to those incurred by the state; the judgment ipso facto does that on a confession.-Yeldell's case, 100 Ala. 26 (14 So. 570). Court may refuse to accept defendant's confession alone for costs; the law requires sureties.-Bowen's case, 98 Ala. 83 (12 So. 782). 7633. (5424) (4534) (4456) (3761) (214) Execution issues as in civil cases.-Execution may issue for the fine and costs, or any portion thereof remaining unpaid, as in civil cases. See citations to § 7632 (5423). 7634. (5425) (4503) (4455) (3760) (213) On default in payment of fine and costs, imprisonment or hard labor imposed. -If the fine and costs are not paid, or a judgment confessed according to the provisions of the preceding section, the defendant must either be imprisoned in the county jail, or, at the discretion of the court, sentenced to hard labor for the county as follows: If the fine does not exceed twenty dollars, ten days; if it exceeds twenty and does not exceed fifty dollars, twenty days; if it exceeds fifty and does not exceed one hundred dollars, thirty days; if it exceeds one hundred and does not exceed one hundred and fifty dollars, fifty days; if it exceeds one hundred and fifty and does not exceed two hundred dollars, seventy days; if it exceeds two hundred and does not exceed three hundred dollars, ninety days; and for (r.c.c.) Judgment, Confession of, Imprisonment in County Jail, Etc. every additional one hundred dollars, or fractional part thereof, twenty-five days. (Clay's Digest, p. 441, § 22.) See citations to § 7632 (5423). Justice of the peace no power to sentence for costs.-Ex parte McKivett, 55 Ala. 236. Delay between the sentence and delivery of the prisoner to proper authorities to work out fine and costs, effect of.-Kirby v. State, 62 Ala. 51. Fine and forfeiture fund accrues from pecuniary penalties and punitive impositions; they are in the nature of profits arising from our system of criminal procedure; to this fund belong moneys received from hire of convicts.-State v. Coleman, 73 Ala. 550. The case of Ex parte Long, 37 Ala. 46 (6 So. 328), was reviewed and modified so as to leave no doubt of the power to impose hard labor for costs.-Wynn v. State, 87 Ala. 137 (6 So. 391); possibly limited by Hill's ease, 122 Ala. 114 (26 So. 230). Where a court imposed punishment of one hour in jail, defendant could not be sentenced to hard labor to pay costs.-Hollis v. State, 123 Ala. 74 (26 So. 231); Hill v. State, 122 Ala. 114 (26 So. 230). Law increasing costs ex post facto.-Caldwell v. State, 55 Ala. 133. This statute not unconstitutional; costs do not constitute a debt within its meaning.-Morgan's case, 47 Ala. 34; McDowell's case, 61 Ala. 176. See Nelson's case, 46 Ala. 186. And imprisonment imposed for costs, although fine is paid.-Nelson's case, 46 Ala. 186. This statute provides for fixing term of hard labor according to fine, while the next section regulates the term for the unpaid costs.-Williams's case, 55 Ala. 166. When fine of fifty dollars only punishment imposed, statutory limit of hard labor is twenty days.-Burch's case, 55 Ala. 136. See Burke's case, 71 Ala. 379; s. c., 74 Ala. 399; Giddens v. Crenshaw Co., 74 Ala. 471. 7635. (5426) (4504) (4731) (4061) (511) When additional hard labor imposed for costs; rules in reference to.-If on conviction judgment is rendered against the accused that he perform hard labor for the county, and if the costs are not presently paid or judgment confessed therefor, as provided by law, then the court may impose additional hard labor for the county for such period, not to exceed ten months, as may be sufficient to pay the costs, at the rate of seventy-five cents per day, and the court must determine the time required to work out such costs at that rate; and such convict must be discharged from the sentence against him for costs on the payment thereof, or any balance due thereon, by the hire of such convict, or otherwise; and the certificate of the judge or clerk of the court in which the conviction was had, that the costs, or the residue thereof, after deducting the amount realized from the hire of the convict, have been paid, or that the hire or labor of the convict, as the case may be, amounts to a sum sufficient to pay the costs, shall be sufficient evidence to authorize such discharge. Note. Seventy-five" inserted for "thirty" by Code Committee. (Feb. 18, 1895, p. 849, § 98; Feb. 26, 1881, p. 37; Feb. 16, 1867, p. 513.) Imprisonment as a legal punishment for crime is authorized for three purposes: first, as a penalty for the offense, and it may be in the penitentiary, in the county jail, or to hard labor for the county; second, to enforce payment or satisfaction of fine imposed, this may be imprisonment in county jail or to hard labor; third, to enforce payment of costs which must be to hard labor for the county.-Ex parte Joice & Smith, 88 Ala. 128 (7 So. 3). Power of court to make order, discharging defendant.-Ex parte Gibson, 89 Ala. 174 (7 So. 833). As to the form and sufficiency of judgment, see Evans v. State, 109 Sentence, Effect of. Ala. 11 (19 So. 535). A statute entitled "An act to establish a convict system for the state, to regulate and manage state and county convicts, etc.,'' cannot prescribe the time of sentence for the payment of costs of conviction or the payment of fees for officers and witnesses in criminal cases, such matter is not properly embraced in such title.-Brown v. State, 115 Ala. 74 (22 So. 458). When court may elect whether a term of two years' imprisonment shall be in the penitentiary or to hard labor for the county.-Hobbs v. State, 75 Ala. 1. Not imprisonment for debt.-Bailey's case, 87 Ala. 44 (6 So. 398); Caldwell's case, 55 Ala. 133; Morgan's case, 47 Ala. 34. Section regulates term for unpaid costs.-Williams's case, 55 Ala. 166. Does not authorize sentence for costs incurred by defendant in making his defense, nor fees due to his witnesses.-Yeldell's case, 100 Ala. 26 (14 So. 570); Bowen's case, 98 Ala. 83 (12 So. 808); Bradley's case, 69 Ala. 318. Apportionment of costs on joint conviction.-Dawson v. Sayre, 80 Ala. 444; Coleman's case, 55 Ala. 173. Judgment should specify amount, number of days, and sum allowed for each day.-Evans's case, 109 Ala. 11 (19 So. 535); Tolbert's case, 87 Ala. 27 (6 So. 284); Gady's case, 83 Ala. 51 (3 So. 429); Armstrong's case, Ib. 49 (3 So. 431); Hill's case, 78 Ala. 1; Walker's case, 58 Ala. 393. Not reversible error, however, to fail in this.-Tolbert's case, 87 Ala. 27 (6 So. 284); Hill's case, 78 Ala. 1; Walker's case, 58 Ala. 393. Erroneous sentence for costs will be corrected and affirmed on appeal.-Johnson's case, 94 Ala. 35 (10 So. 667); Vaughan's case, 83 Ala. 55 (3 So. 530); Miller's case, 77 Ala. 41; Bradley's case, 69 Ala. 318. Fine being paid, prisoner may be sentenced to hard labor for the costs.-Ex parte Joice, 88 Ala. 128 (7 So. 3). Prisoner not entitled to discharge on payment of amount he would earn during term of sentence; he must pay entire amount taxable against him.-Pierce's case, 89 Ala. 177 (8 So. 74). Judgment cannot be pronounced piecemeal; cannot be amended at subsequent term by adding hard labor for costs.-Newton's case, 94 Ala. 431 (10 So. 549). 7636. (5427) (4505) (4511) (3811) (263) Sentence to penitentiary terminates right of executor, administrator, or guardian.—A sentence of imprisonment in the penitentiary, imprisonment in the county jail, or hard labor for the county, for a term of twelve months or more, terminates the right of the convict to execute the office of executor, administrator, or guardian, in the same manner as if he had been removed from office, and extinguishes all private trusts not susceptible of delegation by him. For origin and history of statutes as to punishments, see Toulmin's Digest, pp. 206, 216, 229. (Clay's Digest, p. 442, § 28.) 7637. (5428) (4506) (4512) (3812) (264) Effect of sentence of imprisonment for life.-A convict sentenced to imprisonment for life is regarded as civilly dead, but may, neverthe Death Sentence, Execution of. less, at any time within six months after his sentence, make and publish his last will and testament. (Clay's Digest, p. 442, § 28.) 7638. (5429) (4507) (151) (146) (107) Sentence of officer to penitentiary vacates office; restored on reversal, but not if pardoned. When any person, holding any office or place under the authority of this state, is sentenced by any court of the United States, of this state, or any other state, to imprisonment in the penitentiary, his office or place is vacated from the time of the sentence; and if the judgment is reversed he must be restored; but if pardoned he must not. (Clay's Digest, p. 442, § 27.) Ex parte Diggs, 50 Ala. 78. 7639. (5430) (4665) (4615) (3917) (369) When sentence of death executed. Whenever any person is sentenced to the punishment of death, the court must direct that he be hanged by the neck until he is dead; and such sentence must be executed by the proper executive officer of the law, on such day as the court may appoint, not less than four nor more than eight weeks from the time of the sentence, unless such court suspends the execution on account of the reference of some matter of law arising on the trial for the determination of the supreme court. For origin and history of statutes as to punishments, see Toulmin's Digest, pp. 206, 216, 229. (Clay's Digest, p. 438, § 1.) The appellate court fixes day for the execution of the sentence of death only in case of affirmance of the judgment of the lower court. Where the appeal is dismissed, the appellate court does not fix the day for the execution of the sentence, but the sentence is executed in accordance with $ 7648 (5439) of the Code.-Buford v. State, |