Arnold v. State

96 Tenn. 82 | Tenn. | 1896

Wilkes, J.

Defendant was indicted for felonious assault and malicious stabbing; was convicted of assault and battery, and sentenced to pay a fine of-$15 by the jury. Motion for new trial and in arrest of judgment was made, and overruled. The defendant also moved to retax the costs, and based his motion upon the ground that, having been acquitted of the felony, and only convicted of a misdemeanor, be could not be charged with such costs as accrued in the effort to convict him of the felony. He alleged in his motion that many subpoenas were illegally issued, and that mileage was allowed contrary to law. The Court overruled the motion, assigning as a ground that defendant had pointed out no improper charges, and, thereupon, judgment was pronounced for the $75 fine and all legal costs, and from this judgment an appeal was prayed by the defendant to this Court. The bill of costs, as shown by the transcript, amounts to $872.20.

There was no bill of particulars filed with the motion to retax, showing items complained of, and giving the grounds of complaint as to each specially, and there is no bill of exceptions in the record. Under this state of the record, this Court can grant no relief, because the motion to retax was made before judgment, and before the bill of costs was made up.

The errors were not specifically pointed out in the Court below, and are not in this Court, and there is no bill of exceptions in this Court from which the data necessary could be obtained, if defendant should be entitled to relief. This Court cannot see, from a mere inspection, what part of this bill of costs was incurred in the attempt to convict of felony and what to convict of the misdemeanor.

The judgment of the Court below only adjudges that defendant pay “all legal costs,” and no motion is made after the judgment, and after the bill of costs is made out under it, and the taxation, as made, was practically unchallenged in the Court below.

In an effort to retax costs, the action of the Court below must be had, and the specific items then pointed out, and its action can only be reviewed in this Court upon proper evidence and upon matters appearing from the record. Sherman v. Brown et al., 4 Yerg., 561.

The appeal must, therefore, be dismissed at the cost of defendant. This does not prevent him from making proper application in the Court below, and obtaining such relief as he may be entitled to.