State v. . Shaft

Court: Supreme Court of North Carolina
Date filed: 1878-01-05
Citations: 78 N.C. 464
Copy Citations
1 Citing Case
Lead Opinion
Rodman, J.

As this is the first case under Chapter 196, of

Page 465
'the Acts of 18*76 — "7, we have carefully considered it. The Act makes an important change in the treatment of convicts sentenced to imprisonment in the County jails. It authorizes the County Commissioners or such other County authorities therein as may be established by law, and also the Mayor &e., of cities and towns, under such rules and regulations as they may deem best, to provide for the employment of such convicts on the public streets and highways, on public works, “ or other labor for individuals or corporations;” provided that they shall not be detained longer than the term for which they are sentenced, and that the sums realized from hiring them out shall be applied to pay the fines •and costs.

We need not notice the provisions in the subsequent sections of the Act. It will occur at once that the Act is not •clear as to who shall make the regulations, and says nothing as to what is to be done in case the County Commissioners, and the other County authorities whoever they may be, and the Mayor &c., make different regulations. No question upon that however arises in this case, for here, the County Commissioners alone have acted.

At Spring Term, 1877, of Buncombe Superior Court, the ■defendant was convicted of fornication and adultery, and sentenced tobe imprisoned for six months. After having been in prison for about two months, the County Commissioners hired him out to his wife for the remaining four months •of his term at $5 per month, requiring (or allowing) him to return to the jail every night. The wife gave what purports to be her bond (which the husband signs also) with two sureties, agreeing to pay the $5 per month, or at that .rate for the time that Shaft might work. The proceeding seems to conform to the- Act, and it is not said to be irregular, except in that he was hired to his wife. On this point it is said that her contract was void. So it was, but her sureties were bound. Again it is said, that to permit the

Page 466
wife of a prisoner to hire him, is substantially to' allow him to escape punishment. That may sometimes be so; and it may be so even when the person who hires him is not his-wife. And on the other hand, if the master be a harsh one, the service may be a severer punishment than simple imprisonment. But neither the Superior Court nor this Court can annul a hiring by the County Commissioners, because it is-suggested that the master may be, or is, either too kind or too hard. The selection of the master is confided to the Commissioners. The idea of the Attorney General is, and. perhaps that of the Judge below was, that the punishment was evaded. But, considering the nature of the defendant's crime, it may be that the Commissioners ingeniously devised to aggravate the punishment by arming his wife in addition, to the usual and acknowledged powers of a wife in such cases, with those of a master paying for his work, and entitled thereby to keep him in sight and hearing. In this view, the permission to return to the jail after sunset and remain until sunrise looks like a merciful alleviation of what would otherwise have been a cruel and unusual punishment.

The actual effect of the Act in the present case may betaken to be, to commute imprisonment into the payment of $20 if the costs amount to so much. The Legislature may certainly do this if it thinks proper, and in many cases-where the offence is petty, the propriety of doing so would be generally conceded. But it will be as generally conceded that there are cases in which the only adequate punishment is actual imprisonment. “ In areta et salva custodia. ” The Legislature may see fit to amend the law by leaving it to-the Judge to say in his sentence whether the prisoner may be hired out or not; or, by allowing the hiring only when the prisoner shall be in prison for non-payment of a fine..

We think that the Judge erred in undertaking to annul the action of the County Commissioners, and his order to that effect must be reversed.