
    McDaniel v. The State.
    
      Indictment for Larceny.
    
    
      1. Sentence to hard labor for non-payment of costs in criminal case; duty of court. — Under section 4061, R. 0., when the fine and costs on conviction are not presently paid, and additional hal'd labor is imposed to cover costs, &c., it is the duty of the court trj'ing the case to specify in the sentence the price per diem to be allowed for such labor; and a refusal to do so, upon the defendant’s application, is a reversible error. In such a case, the defendant will be held subject to payment of costs, precisely as if lie had not been sentenced to hard iabor.
    Appeal from Circuit Court of Butler.
    Tried before Hon. John K. Henry.
    The opinion states the facts.
    
      W. H. Duke, for appellant.
    John W. A. Saneord, Att’y Gen., contra.
    
   MANNING, J.

Appellant pleaded guilty to an indictment for larceny in the court below, and a jury assessed the fine against him at fifty dollars. The fine and costs not being paid, and no security being given therefor according to the statute, the court sentenced appellant to hard labor for the county for a specified term, as a part of the penalty for the offense, and also for “ such additional time as may be necessary, at a rate to be fixed by the commissioners’ court of Butler county, not exceeding forty cents per dayj to pay the costs and officers’ fees.” The defendant moved the court to fix the rate at forty cents per day; which the court refused, and defendant excepted. The defendant then moved the court to fix the rate per day itself, at a sum not exceeding forty .cents per day ; which the court refused to do, and defendant excepted.

Section 4061 of the Revised Code, which enacts that, “if the costs are not presently paid,” in a case in which the defendant is sentenced to perform hard labor for the county, “then the court may impose additional hard labor for the county, for a term sufficient to cover all costs and officers’ fees, allowing not exceeding forty cents per diem for the additional labor imposed,” — makes it the duty of the court in which the trial was .had to determine the price per diem to be allowed for such labor. The determination of this important particular of the sentence is not left to the commissioners’ court of the county, but is devolved on tbe tribunal in which tbe trial is had. This court, therefore, reverses and vacates so much of the judgment of the court below as sentences appellant to hard labor for the county, “for such additional time as may be necessary, at a rate to be fixed by the commissioners’ court of Butler county, not exceeding forty cents per day, to pay the costs and officers’ fees.” Defendant below will be subject to the payment of costs, precisely as if there had been no sentence of hard labor against him on account thereof.  