Shields v. Commissioners Shawnee County

5 Kan. 589 | Kan. | 1870

By the Court,

Saeeord, J.

Costs : "When wanes'Slbie "We think that section thirteen of chapter thirt ty-nine, General Statutes, 1868, is decisive of the question raised in this case. It is there provided relative to costs in criminal proceedings before justices of the peace, that “ where', any person charged with an offense less than a felony shall be discharged for want of sufficient evidence to convict or bind over, the prosecuting witness shall be liable for costs.” The record before us shows just such a case as was intended to be covered by this provision, and hence it follows that under it the justice before whom such case was tried ought to have adjudged that the prosecuting witness should pay the costs, when he found, upon due éxamination, that no ease had been made out against the party charged with the commission of a misdemeanor.

Counties not Liable &r. It follows, also, that the taxing up of the costs ' ox ___ against the county was clearly wrong. "We have not been referred to any section of the statute, nor do we know of any, the effect of which would be to interfere with, or to change in the least the rule as above quoted, in its application to ordinary cases. There is, however, another section of the statute which gives increased power to justices in certain cases, when a person charged with crime has been by them discharged for want of sufficient evidence, and it is found that the prosecution was malicious, or instituted by the complainant without probable cause, it is provided that the justice shall not only enter judgment against the complainant for all the costs, but that he shall commit such complainant to jail until such costs be paid, unless such payment be secured, etc. [Gee. 18, Art. 3, Chap. 83, Cen. Gfcii.] It will be seen that this section does not attempt to change the rule first above referred to, in any case to which, either may be applicable. It only provides for a more prompt, effectual and certain way to the enforcement thereof— in certain cases. But we are referred to section nineteen of said chapter thirty-nine, as having some hearing upon this case, when considered in connection with section 106, page 279, and section 19. [P. 882, Gen. StaC] The argument drawn from, these sources is, perhaps, an ingenious one, but it is not entitled to much weight; and especially so, for the reason that the facts in this case are not at all such as they must be to fit the provisions of said section nineteen of chapter thirty-nine. Here there has been no attempt to collect the costs in question from the “ defendant or the prosecuting witness,” nor has there been any effort to show that such costs could not be collected from any other source than the county.

"We are of the opinion that the judgment of the district court in the premises was correct. ' .

Judgment affirmed.

All the justices concurring.