The times. [volume] (Richmond, Va.) 1890-1903, 1898-03-24
SERGEANT EPPS
IS SUSTAINED.
Private Hartman Cannot Be Sent to
Jail By Court Martial.
DECISION OF JUDGE MINOR,
Fines Have TO BE Collected in the Us
uaI Way-Court-Martlais Have Not
the Same Powers as Given by the
Legislature to Other Courts.
DECISION OF JUDGE MINOR


a mandamus.
The proceedings had been Instituted by
Capt. Frank VI. WO0n. judge advoca.e OF
the general court martial In the name Of
Major w. h. Simons, presiuen OF the
general court martial. against II. Clai-
borne Epps. sergeant OF the city OF Rich
mond. and Lieut.. Col. George Wayne An
derson represented the city sergeant.
Judge Minor oecis.on Is as lOno"s'
ThE JLDGES DECISION.
The facts in the case are as follows:
Governor O'Ferrall, while Governor OF
this state. By special orders Nos. 20 and
a. issued, respectively on the 18th Of
September aud the 9th OF October. 1897.
ordered and instituted q general court
martial for the trial Of such persons as
might be properly brought before II.
This court-martial, with W. T. S.mons
(who had been designated by the Gov
ernor) as president. convened on the
evening Of TIA 10Th Of October, 1897, ana
proceeded TO and did try Private j. il.
Hartman on certain charges and specii-
cations. the finding Of the court was that
he was guilty. and its sentence (as part
OF the punishmenO that he be fined SO,
which finding and sentence was approved
by Governor O'Ferrau. who. by virtue Of
his office was commander-in-chief Of the
land and naval forces OF the state. The
said Hartman having failed and refused
10 pay this fine the general court-mar-
tiaf again convened. and. sitting IN the
city Of Richmond at the armory OF the
First Regiment OF Infantry on the 18TH
day Of March. 1ses. ordered a capias pro
fine 10 be issued. directing the sergeant
of the city Of Richmond. commanding him
TO take said J. II. Hartman and him safe
Iy keep until he shall pay the said fine
ri.
issued. in the name OF the Commonwealth
of virginia. to the Sergeant Of The city
of Richmond directed. signed by W. T..
Smons president Of the general court
marital and Frank VI. WOOn. judge-ad-
vocate Of said court. The said capias pro
fine was on the 18th day Of March. 1905,
presented to the respondent Epps. Ser
geant 10 be executed. and he refused.
and still refuses. TO execute u. and. there
upon the petitioner. w f. S'mons. presi-
dent of the court martial applies 10 this
court for a writ Of mandamus to compel
the respondent. Fpps Sergeant. 10 exc
cute the writ q capias pro fine. by ar
resting the said ]. n. Hartman and keep
ing him until tho FIRE Is rad.
IT IS DENNTRRED.
The petition for the writ OF mandamus
Is cemurred to by the respondent. Epps
Sergeant. ard the issuance Of the writ
resisted on the grounds.
First-That under the law the Governor
has no authority TO order General Court
Martial. and that therefore. the Court
Martial which fined Private Hartman.
was an Illegal body acting without au-
thority. whose findings and sentence were
void. IL is not necessary for tho decision
OF this case for the court TO pass upon
this ground OF objection 10 the issuance
Of the writ. Admitting that the Governor
had the authority TO order the Court Mar
tial. that il had jur sdction In the mat
ter, and that its findings and sentence
was valid. the question arises
SecOnd-Which IS the second ground or
resistance 20 the issuing Of the writ OF
mandamus whether the sentence OF the
court imposing the fine upon Private
Hartman can be enforced IN the manner
attempted. namely. by a capias pro fine
Section 323 Of the Code u Virginia au-
thorizes a court martial. on conviction OF
certain offences therein enumerated. 10
punish a private by fine. BY Section 500
of the Code. which provides for the col
lection of fines imposed by Court Mar
tial IT Is enacted FOR the purpose Of
collecting any fines or penalties imposed
by a Court Mar tial. the president Of the
court shall within fifteen days after the
fines or penalties have been imposed and
approved. make a list OF all the persons
fined describing them distinctly and
showing the sums imposed AS fines or
.enalites on each person and shall draw
bis warrant under his Official signature.
directed 10 any marshall Of the court. or
20 the sheriff sergeant. or constable Of
any city or county. as the case may be-.
| thereby commanding him TO levy such
fines or penalties together with the
costs on the goods and chattels OF such
delinquent. and the said warrant shall
thereupOn have the force and effect of a
/ feri facias. but such delinquent shall not
| be entitled 10 the benefit OF any exemp-
tion law OF this Commonwealth as agair st
| such warrant and the lien thereof" Sec
| lions 800 33l, 800 1913 and 32i provides for
the Parnisheeng Of any ore indebted TO
the delinquent. as q further means OF col
! Letting these fines. Section S35 provides
that the marshall Or officer 10 whom any
! such list and warrant Gas IS mentioned in
Section 800 shall be delivered Is hereby
a,vhorized and required 90 execute the
SAME bv levyng and collecting the fines
I or PENALTIES within forty days from the
receipt OF such warrant and make return
ther sof to the officer who issued the same.
NO OTHER PROVISION.
Taere is no other provision in the chap
ter of the Code on the Militia" from
which chapter the above sections are
I taken, or inoeed, in any other part OF the
1 Code, or in any statute law Of the State.
which provides f1r any other mode OF
collecting fines imposed by a Court Mar
tia than those above indicated And IL
would seem that had the Legislature in
/ tended to give any other. especially the
one OF caplas pro fine where the deln-
- Ia Ia sol
/ is paid, 1t would have so provided in d.
rect terms
1T is contended by counsel for the
/ petitioner that while there is no act pro-
viding expressly that fines imposed by a
/ court martial may be collected by means
/ OF a capias pro fine Yet that section 725
of the Code which gives a Court In which
q judgment for a fine has been rendered
the power 10 order a capias pro fine 10
be issued Is broad enough TO include the
! vesting Of this power In courts marital.
| The section reads as follows
WRIT OF FIERI FACIAs.
| The court in which any judgment
! for fine Is rendered. going in whole or in
! part to the Commonwealth. may Of it's
own motion. or at the instance of the at
, torney for the Commonwealth commit
] tho defendant 10 jail until the fine and
P. costs are paid. or until the costs are paid
where there Is no fine; or the court. OF
the judge thereof In vacation may direct
B the clerk TO issue a capias pro fine. either
: before or after the return OF writ NJ
feri faclas. But unless so directed he
clerk shall Immediately after the term
Is ended issue writ Of ilcrl facias. re-
| turnable within ninety days on every
| judgment FOR fine rendered at such
term. or the court may for good cause
shown. direct a writ OF heri facias 10 be