51 Mo. 111 | Mo. | 1872
delivered the opinion of the court.
This case presents the question, whether the Circuit Attorney ought to be allowed more than one fee of five dollars for conviction on an indictment containing three counts, when the defendant is found guilty on each count and three separate fines assessed for disturbing the peace.
The court refused to allow more than one fee of five dollars and the plaintiff has brought the case here by writ of error.
The language of the third clause of Wagner’s Statutes § 2, p. 619, upon which the Circuit Attorney rests his right to several fees, reads as follows : “For conviction upon indictment when the punishment assessed by the court or jury shall be a fine or imprisonment in the county jail, or both such fine and imprisonment, five dollars.” The language here used precludes the idea of several fees to be allowed in one case. The indictment forms but one case; there is but one verdict and one conviction. The defendant by one verdict and judgment is convicted of several offenses. The fourth clause of the same section, under the ruling of this court, only allows one fee “in any case when the punishment assessed shall be by confinement in the penitentiary, except cases of rape, etc., etc.” See Ex parte Craig, 19 Mo., 337. If the Court construed the latter clause correctly that decision settles this case. There is no material distinction in the two clauses. If one allows several fees the other does also.
I think the decision in Ex parte Oraig has been universally acquiesced in, in our State. I am aware however that the Supreme Court of Ills., in Borschenious vs. The People, 41 Ills.,
The point is raised that a writ of error at the suit of the State does not lie in this State. When a defendant has been tried and acquitted, the State is not entitled to a writ of error, but on all other final judgments on indictments the writ is allowed. See The State vs. Newkirk, 49 Mo., 472; State vs. Baker, 19 Mo., 683.
Let the judgment be affirmed.