254 Mo. 471 | Mo. | 1914
OPINION.
Section 5203, Revised Statutes 1909, is as follows: “Continuances may be granted to either party
Section 5376, Revised Statutes. 1909, is as follows: “Whenever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for board, shall be paid by the State or county.”
Section 5377, Revised Statutes 1909, provides: “And in all cases- in which the defendant shall be sentenced to imprisonment in the penitentiary,” etc., “the State shall pay the costs, if the defendant shall be unable to pay them, except costs incurred on behalf of defendant. . . .”
In discussing the question we shall make no distinction between the costs incurred upon the part of the State and those incurred upon the part of the defendant, for the reason that it is not claimed that defendant is unable to pay the costs, but the decision of the question here involved will turn upon the construction to be given the foregoing statutes and more particularly on the construction to be given section 5203-, supra. It will be noticed that said section deals with a special subject, to-wit: The taxation of costs when the cause is continued upon the application of either party, and in that sense provides an exception or special rule concerning the costs therein mentioned. The other sections are announcements more in the nature of a general rule for the taxation of costs when the defendant is convicted and do not undertake to retax costs that have been previously adjudged.
A somewhat opposite but very analogous situation to the one here involved was discussed in the case of State of Missouri v. William A. Brigham, 6-3 Mo. 258. In that case the defendant stood indicted for
“But this section only has reference to tbe costs that accrued at tbe trial which bad not previously been specially adjudged against either party. If at a previous term there bad been a judgment against tbe defendant for costs, they would not be comprehended within tbe intendment of tbe section. If there was any doubt about tbe legislative will in this regard, we think it is made perfectly plain by referring to the statute regulating criminal practice, which declares, that, ‘verdicts may be set aside and new trials awarded on tbe application of tbe defendant and continuances may be granted to either party, in criminal cases, for like causes and under like circumstances, as in civil cases. [Wagn. Stat. 1872, p. 1104, sec. 18.] This we think is decisive of tbe case and renders tbe question too plain to admit of or require argument.” [Id., l. c. 258-9.]
Applying tbe same logic in construing sections 5376 and 5377, supra, it follows that those sections have reference to costs “wbicb bad not previously
It is therefore ordered that a peremptory writ of mandamus issue commanding the 'State Auditor to audit and allow all items of said fee bill except the two items for the sheriff’s mileage.
The foregoing opinion of Wiuliams, C., is adopted as the opinion of the court.