
    *Thomas G. W. McMeekin, plaintiff in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Criminal Law — Misdemeanor—Fine—Execution.—Where a defendant is convicted of a misdemeanor and the judgment is that he do pay a specified fine and costs of prosecution, and he refuses to pay the fine and costs, the Judge has the power to order the clerk of the Court to issue an execution against the property of the defendant to enforce the collection of the fine and costs.
    2. Same — Same—Same—Same’.*—If, in addition to the fine, etc., the judgment directs that the defendant shall be held in custody until the fine and costs are paid, so that the imprisonment do not exceed six months, and the defendant is so held in custody and discharged at the termination of six months, without payment of the fine or any of the costs:
    Held, That the imprisonment was no part of the penalty, and tíie power still existed in the Court to order the issue of the execution to collect the fine and all the costs.
    Criminal law. Fine. Execution. • Before Judge Harvey. Polk Superior Court. August Term, 1872.
    The issues involved in this State arose upon a rule nisi, calling upon McMeekin to show cause why execution should not issue against his property for the purpose of collecting a fine of $300 00 and costs, imposed upon him by the Court, upon his having been convicted of the offense of keeping open a tippling house on the Sabbath day.
    It was admitted that the defendant had been convicted of said offense on November 24th, 1871, and that the following sentence was passed:
    “A verdict of guilty being returned in this case, it is considered, ordered and adjudged by the Court that the defendant, Thomas G. W. McMeekin, pay a fine of $300 00 and costs of this prosecution, and that he be, by the sheriff of said county, committed to the common jail of said county, and there safely kept, until said fine and costs are paid, so that said imprisonment shall not exceed the term of six months from the day of his commitment. to said jail.”
    That the sheriff, January 9th, 1872, committed said defendant to jail, and there kept him confined for six months and two days.
    * After hearing argument, the Court ordered the execution to issue, and McMeekin excepted.
    
      Josepit A. Beance, by E. N. BroyeES, for plaintiff in error.
    Ivey F. Thompson, Solicitor General, by Hamilton Yancey, for the State.
    
      
      Criminal Law — Fine—Execution.—See Ency. Dig. Ga. Rep., vol. 6, p. 202.
      Same — Fine—Enforcement.—In Hathcock v. State, 88 Ga. 99, 13 S. E. Rep. 959, citing principal case, the court said, “if the court simply put a fine upon the criminal, it seems he can enforce the payment of that fine by an unlimited imprisonment in jail; and in that event the imprisonment does not discharge the fine, although the judge or other competent authority may afterwards release the prisoner from jail.” Ency. Dig. Ga. Rep., vol. 6, pp. 204, 205.
    
   Trippe, Judge.

We think the decision in Brock vs. The State, 22 Georgia, 98, settles the question whether the imprisonment was part of the penalty, and that it was only a means of enforcing the collection of the fine.

If a defendant in a criminal case is fined, and refuses to pay the fine imposed, can it be collected by an execution against his goods? etc. There is the judgment against him for a .specific amount, and section 3584 of the Code provides that “the Judge of any Superior Court may frame and cause to be issued by toe. clerk any writ of execution to carry into effect any lawful judgment or decree rendered in his Court.” It is contended that this section refers only to civil cases. But is not this a power inherently existing in the Court? And why should it be limited to civil any more than to criminal judgments? In one case, it is a debt due an individual; indeed, in civil cases it may also be for a debt due the State. In a criminal case the judgment is for a penalty, and it may be said due the State, and some of the authorities call it a debt of record. In The King vs. Woolf, 1 Chitty, 236, (18 English Criminal Law Reports,) the point was distinctly made and decided, that a levari facias might issue for a fine. Abbot, Chief Justice, said: “It seems to nie that the case of The King vs. Wade, in which it was ruled that though one be in execution for a fine to the King, yet a levari facias de bonis et catallis lies, is a decisive authority in the present case. It is an authority founded upon the general principle of the common law, and shows that a levari facias may issue for a fine due *the King, a fine being in fact a debt of record.” Bayley, Judge, said: “The only question we have to consider is, whether the crown has a right to issue a levari facias for the debt in question, and upon that point, it seems to me, on principle, there can be no doubt. Indeed, the question is not discussed on principle; it is not shown in any respect to be inconsistent with legal principle. The only thing that is said is, that this is a new mode of proceeding. * * * * By the judgment, the debt becomes a debt to the King of record, and it is payable to the King instanter. To say that the crown shall not be at liberty so sue out an execution for its debt, is to place-the crown in a worse situation than that in which the subject stands.” .The case of The King vs. Woolf was decided in 1819; that of The King vs. Wade, more than one hundred years before that time. In Virginia, the Court of Appeals, in Pifer vs. The Commonwealth, 14. Grattan Reports,’ 716, a case not involving directly this question, seem to consider it as an unquestionable right in the State. “The judgment in term is final; execution 'may have been issued and levied out of the property of the defendant,” and also, “the judgment for the fine and costs would be final and execution could issue and be collected.” To the same purport: See 8 Wend., 203; Bishop’s Cr. Prac., sec. 870;. Bac. Abr., vol. 4,244.

We do not see any reason why this rule does not exist in Georgia, nor why the State should not be able to protect itself in enforcing its judgments against the necessity that might occur,, either of discharging or supporting, for an indefinite period, an obstinate defendant.

Judgment affirmed.  