Lee v. State

103 Ga. App. 161 (1961)

118 S.E.2d 599

LEE v. THE STATE.

38769.

Court of Appeals of Georgia.

Decided February 15, 1961.

Charles H. Edwards, H. A. Stephens, Jr., for plaintiff in error.

Jeff C. Wayne, Solicitor-General, Sidney O. Smith, contra.

CARLISLE, Judge.

The defendant in this case was one of the several defendants whose case was before this court under the style of Curtis v. State, 102 Ga. App. 790 (118 S. E. 2d 264). Upon the return of the remittitur to the Superior Court of Hall County, the trial judge resentenced the defendant on each of the counts of the indictment upon which he had been found guilty by the jury, each sentence imposing *162 upon him the penalty of a fine of $100 including all costs of the prosecution and carrying the further provision "that said defendant be confined in the common jail of Hall County, Georgia, until the payment of said fine of $100." The only questions presented by this appeal are whether or not the sentences thus imposed upon this defendant are legal sentences within the meaning and intent of the decision in the cited case, and whether they are valid sentences under the provisions of Code Ann. § 97-9901. It is well settled in Georgia that a judge on the conviction of one charged with a criminal offense may impose a fine upon him and provide as a means of enforcing the payment of such fine that the defendant be imprisoned until the fine is paid. Such imprisonment is no part of the punishment. Brock v. State, 22 Ga. 98 (3); McMeekin v. State, 48 Ga. 335 (2); Hatchcock v. State, 88 Ga. 91, 99 (13 S. E. 959); Green v. State, 112 Ga. 52 (2) (37 S. E. 93). The application of this rule imposes no great hardship upon the prisoner, since under the scheme of the law in this State there is a procedure by which he may be released from jail upon a proper showing to the ordinary of his insolvency and inability to pay the costs or fine, or either of them. Code § 27-2804. The ruling of the ordinary on such a showing would be subject to review and any abuse of discretion on his part would constitute reversible error, thus affording the prisoner ample protection against the peril of perpetual imprisonment.

Judgment affirmed. Townsend, P. J., Frankum and Jordan, JJ., concur.