51 Kan. 784 | Kan. | 1893
The opinion of the court was delivered by
“Such a judgment is merely a means of enforcing the legal obligation resting upon the defendant to pay the costs which he, by his original wrongful act and his subsequent acts, has caused to be made, and which have accrued in the prosecution subsequent to the act for which he is punished; and these costs have not accrued to the public merely, but have accrued to individuals, and are given to such individuals as compensation for their services performed in the prosecution; and the right of these costs, and the means for their collection, are vested rights, which cannot be disturbed or abridged or lessened by any pardon which the governor may grant.” (In re Boyd, 34 Kas. 570.)
The costs, although incidental to the punishment inflicted, constitute a separate civil liability in favor of the parties to whom they are due, and from which the estate of the defendant cannot be relieved except by a reversal of the judgment. A review proceeds here at the instance of the administratrix, and for the benefit of the estate. In case of a reversal, of course no new trial can be had, and necessarily no further liability for costs can arise.
The first ground urged for a reversal of the judgment is, that the affidavits which were used as a basis for the information were informal and insufficient. The averments contained in the information sufficiently describe the offense, and it is verified by the county attorney upon information and belief; and the objection made to the affidavits, which were taken by and verified before the deputy county attorney and filed with the information, have become immaterial. After the arrest of the defendant upon the warrant, he voluntarily gave a recognizance and obtained a discharge from custody. This was done before any objection to J . . I -, , the warrant or the information was made, and the ' defendant has thereby waived all right to complain of defects or irregularities in the affidavits and in the
We see no grounds which would justify a reversal, and hence the judgment for costs must stand.