The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-09
.HAv1 NO RIGHT TO
SENTENCE 'TOJA|L'
How Law Has Been In
advertentIy Violated.
NO DISCRETION LEFT
Judge in Wake County Can Only Fix
Term and Not Character OF Impris-
Onment. The Commissioners
Must Send ConVic ed Persons
TO the Roads.

There having been a revival of
talk of the system of sentencing per-
sons convicted in the Superior and
inferior courts to the roads, it was
yesterday sought to get at the exact
law governing the cases which arise
in Wake county under the operation
| of the Code and the recently eancted
Wake County Road Law.
1t will be remembered that when
| the question of prison bounds for
| Rogers and Sorrell was being agitated
The News and Observer called atten-
| ton to the fact that there was a Sc
| rious question as to whether the
| judges of the Superior courts, when
sitting in Wake county, had the right
| to sentence a man convicted before
them to jail Investigation OF the
| statutes indicate the truth of the as
sertion and tend to show that for ten
years and more the majority of the
| prisoners sentenced from the courts
| OF this county We're sent 20 the roads
illegally through judgments which the
court had no right to render
Simmered down and put in plain
| phrase, the law seems to be this:
Ihat, except where the sentence i'm
| posed amounts to term of ten years,
| the Superior court '"does have no
| right to prescribe the manner of pun
| ishment to be endured bV prisoners
convicted in their courts, but may only
sentence such prisoners to certain
| terms of Imprisonment"
But that, in all cases EXCEPT those
| in which the county physician shall
certify that the prisoners are not phys
| ically able to endure road labor, the
, county commissioners have the power
| and are directed to send such per-
! sons as have been sentenced by the
n o., ~
period of their terms
But the county commissioners may
not hire out prisoners to private per-
sons or to corporations except they
be permitted to do so by the judg-
ment of the court.
Now, in Wake county it has been
the practice for years for the judges
both to sentence prisoners to the
roads, occasionally to Jail and fire.
quently to order them hired out when
every such Judgment appears to have
been erroneous.
There is, it would appear, absolute
ly no discretion permitted either the
court or the commissioners; the one
must sentence to term of imprison-
ment; the other must send to the
roads.
In the case ofNRogers and Sorrel,
the only reason that the commission
ers did not send them to the roads
sentence, stated that he would not
send them to the roads and further
indicated his intention of keeping
them in the county Jail by signing an
order permitting them to be taken out
on certain days for the purpose of
seeing their families. Even after they
had been apprised by the county at
torney of the law, the commissioners
heStated naturally to attempt to go
contrary to the direct instructions of
the judge.
Section 344S of the Code provides
that commissioners, mayors, etc, shall
have power to work on the public
roads all persons imprisoned i'm the
Jails, provided that such persons shall
not be detained longer than the term
OF the Judgments under which they
We're imprisoned; that the amount
realized from hiring out shall be
credited on fine or bill - costs: and
that no person imprisoned for the non
paymetn of fine or costs shall be SO
worked unless the court shall so au-
thorize.
This section of the Code was upheld
by the supreme court as long ago as
the 93rd report at page SIS in which
it was held that judge had no pow
er TO send person convicted else
where than to the Jail or penitentiary
and could not sentence such a per-
son to the roads
Under the recent road law of Wake
county the option of the commission
ers to work prisoners is made man.
datoiy there is no exception in the
matter of imprisonment for fines, and
no discretion vested in the Judge to
direct the form of imprisonment of
persons convicted in his court
Section of the Wake County Road
Law which controls the sentencing
and prescribes the method of impris-
oning persons convicto1 the courts
of the county is in part as follows:
THAT all prisoners confined in the
county Jail under a finaI sentence of
the court for crime, or imprisonment
for non-payment of costs or fines. or
under final judgment in cases of bas-
tardy, or under the warrant actl all
insolvents who shall be imprisoned
by any court in said countv for non
payment of costs, and all persons SEN
fenced in said county to the States
Prison for term less than ten wears
shall be worked the public roads
or highways of the county.
Provided further, that in case of Sc
rious physical dsa hii'4- certified to
ov the county physician, persons con-
victed in said Superior, criminal or
inferior courts in the county NAV be
sentenced to the penitentiary or 10
the county jail
Every caluse of the section having
been the subject of a Supreme court
decision sustaining it, there will be
Continued on Page Five.)