26 Kan. 158 | Kan. | 1881
The opinion of the court was delivered by
The facts in this case are briefly as follows: The defendants were arrested and taken before a justice of the peace, where they had a preliminary examination on a charge
The only question before us is one of taxation of costs; and first, counsel challenge the right to render any judgment of costs. The argument is, that costs were unknown to the common law, and that there is no statute declaring in terms that, upon conviction in the district court, the judgment shall carry costs against the defendants. Notwithstanding the apparent defect in the statute, this question is not an open one, having been determined in the early history of this court in the case of County Commissioners v. Whiting, 4 Kas. 273. It was there
Among the sections carrying this implication may be noticed §19, ch. 39, and §§245, 251 and 253 of ch. 82 of the •Comp. Laws of 1879. A question of practice once settled ought not to be disturbed, especially- one whose decision was so just and in such obvious harmony with the general scope and intent of the law.
It is insisted that because thejustice of the peace declined to discharge the defendant Granville upon his application from the charge made against him, and hold him to trial for simple assault and battery, and inasmuch as the final outcome of the proceeding was only conviction for assault and battery, that he should not be charged with the extra costs caused by the state’s insisting on a prosecution for a felony. It is undoubtedly true, as held by this court in the case of
The district court has jurisdiction concurrently with justices of the peace in cases of misdemeanor; and even in such cases a preliminary examination is proper if not necessary to a trial in the district court. The defendant has no right to choose before what tribunal he will be tried; but the state may elect where it will prosecute. Nor is the state to be mulcted in costs because, commencing a trial for felony, it is finally ascertained by the verdict of the jury that the offense committed is really a misdemeanor. So far as fees are less for official services in misdemeanor eases, the defendant, if convicted only of the misdemeanor, is chargeable with only
Again, certain witnesses were subpenaed by the state who were not sworn in the trial against Granville, nor sworn at all, inasmuch as the other defendants pleaded guilty. The right to tax fees for these witnesses is challenged. We are not advised by the record for what purpose these witnesses were subpenaed — whether to be used in rebutting some testimony expected from the defendant Granville, or in the prosecution of the case against the other defendants; and we cannot presume that witnesses were unnecessarily subpenaed, or costs unnecessarily made. The fact that witnesses were not used does not prove that they were not properly subpenaed. Especially is this true when some of the defendants plead guilty. It is the duty of the state to prepare for trial — to have its witnesses subpenaed and in attendance; and if at the last moment the defendants plead guilty, and thus avoid the
A final objection is, that a trial fee of $10 was taxed for the prosecuting attorney against each defendant; and it is insisted that as three of them pleaded guilty there was no trial as to those three, and therefore there should be no fee for trial taxed, save as against Granville. It will be borne in mind that before any trial, the defendants demanded and were awarded each a separate trial, and it is insisted by the state that there became in effect thenceforth four separate cases, properly docketed as such, and the proceedings in the