
    CRIMINAL LAW.
    [Summit (8th) Circuit Court,
    October Term, 1902.]
    Simeon Cameron Smith v. State of Ohio.
    Caldwell, Marvin and Hale, JJ.
    Sentence to Standi Committed Untie Fine and Costs are Paid not Authorized Under Sec. 3140-2 Rev. Stat..
    Section 3140-2 Rev. Stat., making abandonment of child by a parent a felony, does not, nor does any other statute in this state in case of felony, authorize a sentence of imprisonment until the fine and costs are paid. Hence, a court has no authority to pronounce, as a part of the sentence of a prisoner convicted of failing to provide a proper home, support and care for his child, under Sec. 3140-2 Rev. Stat., that he stand committed until fine and .costs are paid, as such offense is a felony under Sec. 6795 Rev. Stat., being punishable by imprisonment in the penitentiary.
    Error to the court of common pleas.
    W. R. Talbot, for plaintiff in error, cited:
    The defendant below, under Sec. 3140-2 Rev. Stat., could be found guilty of a felony alone, and the fact that he might be imprisoned in a jail or workhouse does not alter the case. See Secs. 6795 and 6862' Rev. Stat.; State v. Hamilton, 2 Circ. Dec. 6 (3R. 10).
    Authority cannot be created by implication, and none is granted under this statute to order a person convicted under it, to stand committed until the costs of prosecution are paid.
    Sections 7327 and 6801b Rev. Stat. apply to misdemeanors and not to felonies, and cannot affect this case.
    Plaintiff in error having served out the sentence of ninety days ’ imposed by the court is entitled to immediate discharge.
    Error, not habeas corpus, is the proper remedy. Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55]; Van Hagan, Ex parte, 25 Ohio St. 426; Dillon v. State, 38 Ohio St. 586; McAdams, Iu re, 11 Circ. Dec. 780 (21 R. 450). '
    H. M. Hagelbarger, prosecuting attorney, for defendant in error.
   MARVIN, J.

The plaintiff in error was convicted upon an indictment charging him under Sec. 3140-2 Rev. Stat. (94 O. L. 105), with having unlawfully, knowingly, wilfully and negligently neglected, refused and failed to provide his child, Rilla Smith, with a proper home, support and care.

After conviction the court pronounced sentence that “the defendant, Simeon Cameron Smith, be confined in the workhouse at Canton, Ohio, for the period of three months, and that he pay the costs of this prosecution and to stand committed until said fine and costs are paid, or he be otherwise legally discharged.’’

Thereafter there was filed in the court of common pleas a motion by-said Smith to modify this sentence by “eliminating that portion of said judgment and order which orders that the defendant stand committed until the costs of the prosecution are paid, or defendant is otherwise legally discharged.” This motion was overruled by the court.

The errors complained of are that the court was without authority of law to pronounce, as a part of the sentence of the prisoner, that he stand committed until the fine and costs were paid, and that the court overruled the motion for a modification of this sentence.

The petition in error is well taken.

The statute (Sec. 3140-2 Rev. Stat.) under which the plaintiff in error was convicted, authorizes punishment “ by imprisonment in the penitentiary for not more than three years, nor less than one, or in a county jail or in a workhouse at hard labor for not more than one year, nor less than three months.” There is nothing in this section which authorizes the imprisonment of the convicted party until the fine and costs are paid, nor is any authority found in any section of the statute for such imprisonment where one is convicted of a felony. The section under which this conviction was had, in terms, provides that whoever is guilty of the offense charged in the section is guilty of a felony.

Section 6795 Rev. Stat. defines a felony in these words: “ Offenses which may be punished by death or by imprisonment in the penitentiary are felonies ; all other offenses are misdemeanors.”

Section 7327 Rev. Stat. provides:

When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged.”

This section is under the caption, “Execution of sentence for misdemeanor.” And it seems clear that the sections under this heading are confined to cases of misdemeanor. The language of the several sections, wherever the court is spoken of, is court or magistrate ” or the words “ magistrate or court,” clearly indicating that the cases to which these several sections apply are those which may be finally disposed of by a magistrate, and do not include cases of felony.

Entertaining these views, we hold that the sentence, in so far as it included imprisonment until the fine and costs were paid, is erroneous, and the court should have granted the motion to modify the sentence in that regard.

The case is remanded to the court of common pleas with the direction that the modification of the sentence be made as herein indicated. The remainder of the sentence is in force as pronounced. The costs of the proceeding in error will be taxed to the defendant in error.  