19 Kan. 481 | Kan. | 1878
The opinion of the court was delivered by
This case was originally commenced before a justice of the peace, under section 253 of the crimes act, (Gen. Stat. 373,) against John Campbell and two others. A. G. Jones was the prosecuting witness. The case was tried before the justice, and the defendant Campbell having been convicted, gave bond and took an appeal to the district court, where, after several continuances, the case was called for trial at the July term 1877. Campbell announced himself ready for trial. The county attorney having been of counsel for the defendant Campbell, the court appointed one J. C. Murray to prosecute on behalf of the state, who, with the consent of the prosecuting witness, Jones, and by leave of the court, entered a nolle prosequi over the objections of Campbell, and Campbell was thereupon discharged. The county attorney then filed a motion to tax the costs in said action to the prosecuting witness, for’the following reasons:
“ 1st, That the action was dismissed by the state with the knowledge and consent of the prosecuting witness, when the defendant Campbell was present and demanding trial. 2d, That the prosecution was without probable cause. 3d, That the prosecution was malicious.”
A copy of the motion was served on said prosecuting witness, Jones, and afterward the motion came on to be heard. The state appeared by the county attorney. The defendant Jones appeared by J. C. Murray and J. R. Goodin, his attorneys. A jury was waived, and the cause submitted to the
As to the first question reserved, we answer that the district court committed Ho error in refusing to hear the evidence on the motion of the county attorney to tax the costs in the action to the prosecuting witness. The prosecutor was not liable under any provision of the statute. This action was pending in the district court at the time of its dismissal, and section 13 of the act relating to fees, (Gen. Stat. 481,) has no application. That section relates to fees in proceedings before justices of the peace—not to actions in the district courts. Neither is the case presented to us within the letter of section 326 or section 327 of the criminal code, (Gen. Stat. 872,) to which we have been referred. The language of these provisions of the statute does not apply to this action, and we cannot extend them. (The State v. Menhart, 9 Kas. 98.)
As to the second question reserved by the state, our response is, that the court below erred in taxing any of the costs to Allen county. Costs are unknown to the common law. They are given only by statute, and may be changed, or taken away, at the will of the legislature. As there is no statute author
This ^construction of our statutes may work injustice to officers and other parties who might be entitled equitably to have their fees paid by the county, Or the prosecutor, or in some way; but as we are not the law-making power, we are not at liberty to add to the statute, nor responsible for the omission to provide for the payment of the costs in such cases. This omission seems to have been intentional. Sections 311 and 312 of the criminal code of 1859, Comp. Laws 1862, p. 281, prescribed that the costs in criminal actions should be paid by the county in which the offense was committed, when the defendant was convicted and unable to pay them; and when the defendant was acquitted, the costs were to be paid by the county, unless the prosecutor was adjudged to pay them. Said section 312, relating to costs in cases of acquittal, was omitted in the revision of 1868, and no section of like import inserted in its place. But for the proviso in section 19 of the act relating to fees, (ch. 39, Gen. Stat. 483-4,) which restricts the operation of that section to cases in which there is a conviction, that section might have given sheriffs and clerks authority to obtain their fees of the county, when not paid by the defendant or the prosecuting witness. As said section 19 is thus limited, it cannot apply in this action, nor in cases of acquittals.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the motion of Jones to tax the costs to Allen county.
