65 Iowa 11 | Iowa | 1884
The evidence introduced on the hearing before the district judge establishes the following facts: An information was filed before B. F. Stahl, a justice of the
The attorney for the state filed a motion to strike out of the affidavit the allegation with reference to the other justices, which motion the justice sustained. The change of venue was then granted, and the cause was sent to said Justice Conley, and the accused was taken before him by the officers who had him in custody. He then filed a motion to dismiss, the case, on the ground that said justice did not have jurisdiction to try the same, he not being the next nearest justice to Justice Stahl, against whom no legal objections existed, and that the action of Justice Stahl in sending the cause to him for trial was unlawful. This motion was overruled. The accused then pleaded not guilty, and a trial was had, in which he was found guilty, and he was adjudged to pay a fine of $100, and the costs, taxed at fifty-two dollars and seventy cents; and it was ordered that, in default of immediate payment of said fine and costs, he stand committed to the county jail for forty-five days, unless the fine and costs be sooner paid or satisfied according to law.
“Section 4670. If a change of venue be applied for, an affidavit must be filed, stating that the justice is prejudiced against the defendant, or is of near relation to the prosecutor upon the charge, or the party injured or interested, or is a material witness for either party, or that the defendant cannot obtain justice before him, as affiant verily believes.
“Section 4671. If such affidavit be filed, the change of venue must be allowed, and the justice must immediately transmit all the original papers, and a transcript of his docket entries in the case, to the next nearest justice in the township, unless said justice be a party to the action, or is related to either party by consanguinity or affinity within the fourth degree, or where he has been attorney for either party in the action or proceeding; and in such case the justice before whom such action or proceeding is commenced shall transmit all the original papers, together with a transcript of all his docket entries, to the next nearest justice in the county, against whom none of the above objections exist, who may require the defendant to plead; * * * * but no more than one change of venue in the same case shall be allowed.”
The position of counsel for plaintiff is that, by the provision in the latter part of section 4671, — that “the justice before whom the action or proceeding is commenced shall transmit all the original papers, together with a transcript of all the docket entries, to the next nearest justice in the county, against whom none of the above objections exist,” reference is had to those objections which are enumerated in section 4670, as causes entitling the party to a change of venue. We think it very clear, however, that the language of the section does not admit of this construction. The object of the section is to designate the justice to whom the cause shall be
It is then provided that in “ such case,” — that is, in case it is shown that any of the objections just enumerated exist against the next nearest justice in the township, the case shall be sent to the next nearest justice in the county, against whom none of such objections exist.
This is the clear meaning of the language of the section, and there is no rule of construction under which the provision in question can be made to refer to the objections enumerated in section 4670, as grounds for a change from the justice before whom the action is commenced.
“No person shall own or keep, or be in any way concerned, engaged, or employed in owning or keeping, any intoxicating
The position of counsel is that, under this section, a punishment may be imposed for the offense of which plaintiff was accused, which is in excess of the jurisdiction of a justice of the peace, as the same is defined by section 11, article 1, of the constitution of the state. This section is as follows:
“ All offenses less than felony, and in which the punishment does not exceed a fine of $100, or imprisonment for thirty days, shall be tried summarily before a justice of the peace, or other officer authorized by law, on information under oath, without indictment or the intervention of a grand jury, saving to the defendant the right of appeal; and no jierson shall be held to answer for any higher criminal offense, unless ón presentment or indictment by a grand jury.”
Under the section of the statute quoted above, a fine of not less than fifty nor more than one hundred dollars is to be imposed on the defendant on conviction, and the costs of the proceedings are to be taxed against him, and he is to stand committed to the county jail until such fine and costs are paid; and he cannot avail himself of the benefits of the statute, which provides for the liberation, on certain specified conditions, of defendants who have’ been committed for the non-payment of fines imposed upon them, (Code, § 4611,) until he has been imprisoned sixty days. And the claim is that the costs which are taxed against the
But we think this claim is not well founded. The costs which, under the statute, may be taxed to the defendant, are such as accrue in the proceeding for its enforcement against him. These costs are merely incidental to the proceeding. They are collected for the compensation of the public officers who render services in the cause, and the witnesses who give testimony in it. But they in no proper sense pertain to the penalty which may be imposed on the defendant by the judgment of the court, by way of punishment for his violation of the statute. The sum which may be exacted from him as punishment for his criminal misconduct is that definite and certain sum called a fine, which the court is empowered by the statute to impose upon him. That is the sum which he is compelled to pay to the state as the penalty of its violated law, and the costs are exacted as a mere incident-of the proceeding, to enforce that penalty against him, and for the purpose of compensating those who render services in that proceeding.
The power to tax the cost of the prosecution against the defendant exists independently of the statute in question. It has been the uniform practice of the courts of this state, in criminal eases, on the conviction of the defendant, to tax the costs of the prosecution to him; and the power to do this is not questioned. The only effect of the statute, then, on the powers of the courts with reference to the taxation of costs, is to empower them to commit the defendant in case of his refusal to pay such costs as may be taxed against him. The provision with reference to the imprisonment of the defendant is, that he “ shall stand committed until such fine and costs are paid.” This does not empower the court to imprison him in punishment for his offense.
The provision in the judgment for his commitment is con
We think, therefore, that the order of the learned district judge is correct, and it is
Affirmed.