State ex rel. Hopkins v. Justices of Buchanan County Court

Fagg, Judge,

delivered the opinion of the court.

This is a petition for a mandamus requiring Philemon Bliss, George Schriber, and Monroe Boyer, justices of the County Court of Buchanan county to allow and order the *256 payment of a bill of costs, alleged to be due the petitioner as the clerk of the Circuit Court of said county, under and by virtue of the provisions of chap. 219 of G-eneral Statutes of Missouri. The case is presented here upon an agreed statement of facts, and requires but a brief consideration.

It is claimed that the liability of the county in this instance is fixed by the second section of that chapter: “ The county in which the indictment is found shall pay the costs in all cases where the defendant is sentenced to imprisonment in the county jail, and to pay a fine, or either of these modes of punishment, and is unable to pay them.” The facts in relation to the services for which the petitioner claims that he is entitled to the fees as charged are set out in the petition, and admitted to be true by the defendants. It seems that at the-term of the Buqhanan Circuit Court, one H. W. Smith was indicted by the grand jury for selling whiskey without a licence. At a subsequent term, the circuit attorney, acting under the consent of the court and by agreement with the defendant, dismissed the prosecution at defendant’s cost. The costs were all regularly taxed, including a charge by the clerk for issuing an execution against the defendant, and were certified to by the judge and cir■cuit attorney in the manner pointed out by the statute. It .is claimed that the county is not liable because, 1st. There was no conviction of the defendant; and 2d. If it is bound for any portion of the costs, it ought not to be required to pay any that accrued subsequent to the order of dismissal.

The judgment for costs in every criminal case where there is a conviction necessarily follows as a part of the punishment inflicted. The conviction of the defendant is the evidence fixed by the statute for determining his liability to pay the costs of the prosecution. If the conviction is for a felony and he is unable to pay them, the costs are then paid by the State; if for a misdemeanor, by the county. What difference can it make to the county whether he is tried and convicted of the offence charged against him, or voluntarily confesses the charge to be true ? In either case he would *257 be required by tbe judgment of the court to suffer the penalty imposed by law. In this case the judgment of the court entered upon his own voluntary assumption to pay the costs was sufficient to bind him for that purpose. In other words, he has by his own act fixed his liability to pay the costs, and if unable to pay them, the county is just as much bound as if his liability had been fixed by law. We can perceive no reason why the services rendered in issuing the execution were not as necessary as any others charged for. It was perhaps the most satisfactory way in which the ability of the defendant to pay costs could be determined. In any event it followed as a necessary incident to the judgment against the defendant, and should be paid as well as the remainder of the bill.

A peremptory mandamus will be issued.

The other judges concur.