61 Ala. 72 | Ala. | 1878
The State is not chargeable with costs created in the prosecution of a person indicted for a violation of law, whether the defendant be convicted or acquitted, unless it has consented or provided by statute that they may be charged against it. Nor are the counties respectively liable for the costs in State cases arising or tried therein, except to the extent and in the manner declared and enacted by the legislature. Hence, it is to the written law we must look, to ascertain what liability, if any, there is in the present case on the part of Greene county to Hale county. The latter sued for the amount of jurors’ certificates paid by it, to persons summoned term after term from 1872 to 1875, to serve on juries for the trial therein of one Bob Murray, for murder alleged to have been committed by him in Greene county, from which the cause was transferred by a change of venue to Piale.
By section 5049 (4345) of the Code of 1876 — fees are allowed to persons summoned to serve as jurors; and the clerk is authorized to deliver to each of them a certificate for the sum he is entitled to; which (it is declared) shall be “receivable in payment of any county dues, and payable out of -the county funds.” By sections 4459 and 4460, fees to witnesses for the State are also in certain contingencies,
But sometimes a prosecution begun in one county is transferred, by change of venue, to another. And it is enacted that “ all fines and forfeitures in such cases, go to the county in which the indictment was found, and judgment must be rendered accordingly; and the fees of all jurors and witnesses, on being properly certified by the clerk of the court to which the trial is removed, are a charge on the county in which the indictment was found in like manner as if the trial had not been removed.” — § 4917 ^4212).
We can not doubt that in the cases in which a change of venue is obtained, the fees here referred to must be paid by the county in which the indictment was preferred, “ in like manner as if the trial had not been removed,” — that is, upon the presentation of the certificates by the respective holders of them, to the officer of that county whose duty it is to pay them, and out of the funds designated by law. The statutes in fact, make these certificates, or the costs of which they are the evidence, chargeable in all cases, uponjthe counties in which the prosecutions are instituted, and upon no other.
There may be as argued, difficulty sometimes in carrying these laws into effect according to this construction. And it may be inconvenient to jurors residing in Hale county to have to go or send to Greene county for their fees. The opposite construction would not make it less so, to another class of certificate-holders. The statute last cited relates to the fees of witnesses as well as jurors. And the witnesses in this cause, resided, presumably, in Greene county, where the homicide xvas committed. And if the jurors must look to Hale county for payment, so must the witnesses, who live in Greene county, go or send to Hale county, for their fees. It is probable these statutes need revision and amendment. But we can not give to them the operation contended for without judicial legislation.
The fees here sued for, were due, not from Hale county to the holders of the certificates, but from Greene county; and by its treasurer, if duly presented to him from time to time, as issued, they should have been paid. Hale county could not, by voluntarily paying them, make itself the creditor of Greene county, for the money paid without its request.
