62 Pa. Super. 468 | Pa. Super. Ct. | 1916
Opinion by
.This appellant made an information before a justice of the peace, which charged the defendant with “unlawfully killing a male deer, which did not have horns visible above the hair” in violation of Section 18, of the Act of May 1, 1909, P. L. 334. The defendant was found guilty by the justice, and upon a special allowance he was granted an appeal to the Court of Quarter Sessions, the order stating, “the case to be proceeded with by in-dictment as other charges of misdemeanor.”
On the trial in the Quarter Sessions a verdict was returned, as follows, “we find the defendant, B. M. Dickinson, not guilty, and the prosecutor, Joseph Kalbfus pay costs.”
The appellant presented his petition to the court to set aside the verdict in so far as it related to costs, for the reason, that the prosecution was instituted and conducted to a verdict on probable cause; and in good faith by a public officer, — the secretary of the Board of Game Commissioners, — who, as such was the proper person to protect and preserve the game, song and insectivorous birds and mammals of the State. The court, under authority of Commonwealth v. Shaffer, 52 Pa. Superior Ct. 230, set aside the verdict so far as it imposed costs on the prosecutor, but refused to make an order on the county to pay the costs of prosecution, and this appeal is presented to determine the accuracy of that order.
We are satisfied that the court placed a wrong construction on the verdict, in holding — “what the jury really decided was, that Dr. Dickinson should not pay these costs, and that the County of Clearfield should not pay them, and to this finding this court will give all effect possible.” The jury did not mention the County of Clearfield in the verdict, and having made a mistake, as a matter of law, in the futile attempt to impose
The reasons given by the court for withholding the order are alike unwarranted, viz: “The burden upon the county of paying costs in unsuccessful prosecutions is wholly unjust and unreasonable,......that the county should be burdened with the costs of unsuccessful prosecutions has no foundation in proper legislation.”
The constitutionality of any of the game laws was not questioned, and it is the plain duty of the courts to make their provisions effective by furthering their enforce-; ment. The Act of 1905, under which the court refused to make the order, is but one of a system of acts relating to the subject of costs in such cases, and to interpret the legislative will we must have recourse to its own words, and to like enactments relating to the same subject-matter. With the wisdom of such legislation we are, or should not be concerned; it represents the declared will of the law-making power of the State. It is- the policy of our laws to protect officers and witnesses for the Commonwealth, and secure to them the legal costs for their compulsory service in behalf of the Commonwealth. To hold otherwise would mean that witnesses, whose testimony is necessary to successfully maintain prosecutions in the name of the Commonwealth, who could be required by attachment to be. present in court, and yet be without remedy as to their proper costs. No authority can now be found for such a conclusion. Whatever doubt there was on the subject, was settled by the Act of May 19,1887, P. L. 138, the title to which is — providing for payment of costs in criminal cases by the proper county, and the first section is, as follows: “That the costs of prosecution accruing in every case of misdemeanor in any of the "Courts of Quarter Sessions of the Peace of this Commonwealth shall, on the termination of the prosecution, by the bill of indictment being ignored by the grand jury, or by a verdict of a traverse jury and
The effect to be given to the words “on the termination of the prosecution, by the bill of indictment being.ignored by the grand jury, or by a verdict of a traverse jury and sentence of the court thereon,” is carefully considered in Wright v. Donaldson, 158 Pa. 88, in which Williams, J., says in regard to it: “The Act of 1887 was intended to remedy the hardships of that of 1860. It changed the position of the county from that of an ultimate guarantor liable only after all proper legal remedies had been used unsuccessfully against the party on whom the costs had been imposed, to that of liability in the first instance; and charged it with the duty of using all the legal means of collection from the proper party, to reimburse itself.” This was followed in Allen v. Delaware County, 161 Pa. 550, the court saying: “The Act of 1887 in creating a liability of the county for costs in such a case did not mean that the court should go through the superfluous formality of sentencing the county to pay, for the act itself expressly does that by the direction that the county shall be ‘immediately chargeable’ with them,......There is no reason for construing the requirement of a sentence as applicable to cases where it could only be a most superfluous technicality, totally without influence on the liability of the county which it was the purpose of the act to establish.”
In the present case the defendant was relieved by the verdict of the jury, and the prosecutor by the order of the court setting aside the verdict as to costs. The matter as to each of these was terminated, and neither had any further liability in regard to it.
The Act of April 16,1903, P. L. 213, provides that when officers whose duty it is by the laws of this State to protect our game, our song or insectivorous birds, shall in good faith bring suit for violation of any of the laws relative to these subjects, and for any legal cause shall fail to recover the costs of record, the same shall be a charge upon the proper county, and shall be audited and
This record shows that the appeal from the judgment of the justice was allowed by the court below, “as a proper case for investigation before a court and jury” and when the case was before this court in Commonwealth v. Dickinson, 57 Pa. Superior Ct. 380, it was decided that the indictment was a proper one under the statute. The record shows that the prosecution was instituted by a public officer, whose duty it was to enforce the game laws of the Commonwealth; and there is nothing to suggest that it was recklessly or maliciously brought, or that there was lack of probable cause. The amount of the costs is not before us for taxation; that phase of the question has never been passed on by the court below, and if there are errors in the bill as filed, it may be corrected under the usual procedure; the court retains control of that question until they are paid.
No good reason being shown for refusing to make the order that the county should pay the costs of prosecution, the order of the court below is reversed, and it is now ordered that the costs authorized by the law in this case to be taxed of record, be chargeable to and paid by the County of Clearfield.
