22 Mo. App. 476 | Mo. Ct. App. | 1886
delivered the opinion in vacation.
An application was presented to the undersigned, by the above named petitioners, after the adjournment of the court, for the term, praying to be dislarged by habeas ■corpus from the custody of the sheriff of Lawrence •county, by whom the petitioners allege they are illegally held in custody, under a warrant issued by a justice of the peace of said county, directing their imprisonment in the county jail of said county, under a judgment rendered by the said j ustice in a prosecution for a misdemeanor for the non-payment of a portion of the costs taxed .against them under the judgment. The application was accompanied by a stipulation of the sheriff of Lawrence •county, submitting the matter to the jurisdiction of the .court (then supposed by the parties to be in session), without the formal issuing of a writ of habeas corpus and the consequent expense of bringing the prisoners
There is no question as to the facts, and the parties agree upon the point of law upon which the supposed right to imprison the petitioners depends. They were jointly proceeded against by information for a misdemeanor, before a justice of the peace, were jointly tried before a jury, jointly convicted, and adjudged to pay a fine of twenty-five dollars and costs. They paid the fine and what they were advised were all the costs, including a single fee of five dollars for the prosecuting attorney. The justice of the peace had taxed a fee of ten dollars for the prosecuting attorney, or a fee of five dollars in respect of each defendant; and for the non-payment of the remaining five dollars, he issued his warrant of commitment, under which the petitioners are now held. If the prosecuting attorney was entitled to a fee of five dollars, in respect of each defendant, it is agreed that the warrant was properly issued; if not, it is agreed that the prisoners ought to be discharged by habeas corpus.
The question depends upon the meaning of the following clause in section 5596, of the Revised Statutes, prescribing the fees of prosecuting attorneys: “For convictions in the circuit court, upon indictment, or before a justice of the peace, upon information, when the punishment assessed by the court, or jury, or justice, shall be fine, or imprisonment in the county jail, or both suoh fine and imprisonment, $5.00.” The question in the narrowest form of statement is, whether the
I am of opinion that the former is- the correct view of the meaning of the statute. There seems to be no di.rect authority upon the question in this state, and none has been cited to me from any other state. But the case being, to say the most in favor of the view of the prosecuting attorney, one of doubt, would be subject to the rule that all statutes in reference to costs must be strictly construed. Shed v. Railroad, 67 Mo. 687. Moreover, a strong analogy in favor of the view that the circuit attorney is entitled to a single ¿fee only, is found in two decisions in this state, to the effect that, where a judgment is rendered, in a criminal case, in favor of the state, upon an indictment which contains several counts, the prosecuting attorney is entitled to but one fee, and not to a separate fee for each count. The State v. Peek, 51 Mo. 111; Ex Parte Craig, 19 Mo. 337. The former of these cases involved a construction of the precise clause -of the statute now under consideration, and it was said by Adams, J., in giving the opinion of the court, that “ the language here used precludes the idea of several fees to be allowed in one case. The indictment forms but one case. There is but one verdict, and one conviction. The defendant, by one verdict and judgment, is convicted of several offences.” The learned judge alesa reasoned that there was no difference in its effect upon this question between the clause of the statute now under consideration, and the next clause of the same section under which the decision in Ex Parte Craig was rendered, and that that decision governed the question. In that decision, in the opinion of the court, very similar language is used: “The fee allowed is for a con
The case of The State v. McO' Blenis (21 Mo. 272), to which I am cited by the prosecuting attorney, is not in point. The question there related to the apportionment of the costs among several defendants, and not to the amount of fees taxable in favor of the state’s officers.
The prosecuting attorneys are a meritorious class of officers ; their services, when conscientiously and skilfully rendered, are of great benefit to society. N© judge or accounting officer will show any disposition to deny them the fees to which they are lawfully entitled. But
The commitment under which these petitioners are held in custody has, therefore, been issued in a “ case not allowed by law,” within the meaning of section 2650, Revised Statutes, and their detention thereunder is illegal. It is accordingly ordered that they be discharged from custody. The clerk of the court will certify a copy of this order to the sheriff of Lawrence county.