Phillips v. State , 58 Miss. 578 ( 1880 )

Cooper, J.,

delivered the opinion of the court.

Appellant ivas convicted of manslaughter, and from the judgment condemning him to imprisonment in the penitentiaiy, and to pay the costs of the prosecution, he appealed, executing a supe.rsedeas-honú in accordance with the statute. Pending the appeal he lias been pardoned, and haviug now failed to file the record from the court below, a motion is made by the State to docket and dismiss the appeal for want ■of prosecution thereof, and for a judgment on the appeal-bond for the costs in the court below and in this court. The appellant resists this motion, urging that the pardon has wiped out the offence, and hence there can now be no judgment here affirming the judgment of the court below; and, therefore, while it may be in the power of the court to dismiss the appeal and discharge the supersedeas, so that execution may issue on the original judgment, there can be no judgment here on the bond.

The fact that appellant has been pardoned since the appeal was taken does not release him from the payment of the costs of the prosecution which had previously been adjudged against him. He cannot be held in custody for the payment of the costs, but his civil liability is not extinguished. Ex parte Gregory, 56 Miss. 164. The appeal has superseded the judgment of the court below, both for the payment of the costs and the infliction of the imprisonment. The punishment of imprisonment is abrogated by the pardon ; but as the appeal is not successfully prosecuted as to the judgment for costs, the appellant and the sureties on his appeal-bond are still liable therefor. “ If the offence be pardoned after costs taxed, and then the defendant appeal to a superior court, which gives new costs, whether upon affirmance or reversal of the first sentence, they shall not be avoided by reason of the pardon, because they are not given in respect of the offence, but of the award of former costs, which, being taxed before the pardon, are not avoided by it; and therefore the appeal was proper for determining whether they were well given or not.” 2 Hawk. P. C. 546, sect. 48.

The motion to docket and dismiss is sustained. Judgment will be entered here against the appellant and the sureties on his appeal-bond for the costs in this court and in the court below.