7 Colo. App. 56 | Colo. Ct. App. | 1895
delivered the opinion of the court.
Plaintiff was charged with murder, convicted of voluntary-manslaughter, and was sentenced to the penitentiary for six years. The case is not brought to this court to have the conviction reversed, but for a review of the judgment of the district court taxing costs. A judgment for costs of prosecution was rendered against him for $846.96. A motion was made by plaintiff to retax the costs. A hearing was had and the amount of the judgment reduced to $670.96, which is brought here for review.
Three of the assignments of error may be consolidated: That the court erred in allowing fees to more than four witnesses; in allowing sheriff’s fees for summoning more than
The provision of the criminal law (Gen. Stats., sec. 964; Mills’ Stats., sec. 1471) is: “ In any case where any person or persons shall be convicted of any crime or misdemeanor, in this chapter specified, or of any at common law, the court shall give judgment that the offender or offenders so convicted shall pay the costs of prosecution.”
This section was adopted from the criminal law of the state of Illinois at the organization of the territory in 1861, aud has continued to be the statute up to the present time. In the criminal law there appears no restriction or limit to the amount of costs of prosecution, only that the items of cost must necessarily conform to the fee bill, and that the charge for each service shall not exceed the amount allowed. The whole matter appears to have been left to the discretion of the prosecutor and the court.
The contention of counsel for appellant-is that the costs in this case are controlled by sec. 408, Gen. Stats, (sec. 685, Mills Stats.), as follows:
“ In no case in the district court shall the fees of more than four witnesses be taxed against the party against whom judgment shall be given for costs, unless the court shall certify on their minutes that more than four witnesses were really necessary; in which case the clerk shall tax the costs of as many witnesses as the court shall so certify.”
This section was also adopted from the statute of Illinois at the first session of the territorial legislature, and has been continued to the present time. In Illinois it was the law in civil cases from 1845 to 1874, nearly thirty years.
The question here presented is whether it is applicable and controlling in criminal cases. In Illinois, as in this state, it has always been regarded as pertaining to civil cases only. In all the years that it was in force in the state of Illinois, I can find no case where an attempt was made to apply it to
The rule in regard to reviews in courts of last resort is clearly and concisely stated by Chief Justice Waite in Boley v. Griswold, 20 Wall. 486 : “ In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must'appear affirmatively before there can be a reversal.”
Affirmed.