State v. Barker , 63 Mo. App. 535 ( 1895 )

Ellison, J.

Defendant was indicted for the commission of a felony — the crime of seduction. He applied for and obtained two continuances, granted at his costs for which judgments were rendered against him. Afterward the case was dismissed by the state. Afterward, an execution was issued by the order of the prosecuting attorney, at the request of the clerk of the court and witnesses who had costs due them. This execution was levied upon some of defendant’s lands and the case is here on an appeal from the judgment of the court overruling a motion to quash the execution. After an examination of the briefs and arguments furnished us by the prosecuting attorney of Cass county and the defendant’s counsel, we have concluded to affirm the judgment of the circuit court overruling the motion to quash.

It is provided by section 4180, Revised Statutes, 1889, relating to criminal procedure: “Continuances may be granted to either party in criminal cases for good cause shown, and the court may postpone the trial of any such cause for good and sufficient reasons, of its own motion. When a continuance is allowed on the application of either party, it shall be at the costs of the party at whose instance it is granted, unless the court otherwise directs.” In- our opinion, that section is sufficient statutory authority for the rendition of a judgment for costs against a defendant in a criminal case. Sections 4265 and 4395 provide that, upon the conviction of a defendant, he shall be adjudged to pay the costs, and that it shall be the duty of the clerk of the court, at the end of each term, to issue executions for the costs of conviction. It is true that neither of these-sections refer in terms to the costs of a continuance, but from that fact we are not authorized to assume the-legislature did not intend that an execution should issue on a judgment for costs arising on a continuance. A fair and reasonable construction of section 4180 is-that the legislature, by authorizing a continuance at the costs of defendant, meant that there should be a judgment rendered against him and necessarily an execution upon such judgment.

Defendant contends that the section does not authorize a judgment and execution, from the fact that it authorizes the continuance to be granted at the cost of either party, and that an execution can not be issued against the state in instances where the costs were taxed against the state. But the inability to issue an execution against the state arises from general principles, as-well as from other portions of the statute, neither having any application to the individual. There is nothing in other portions of the statute to circumscribe the-natural meaning or construction of section 4180; as-applied to the defendant in the indictment. We do-not think that section 4411, or the law as-to fees and fee bills contained in Session Acts of 1891, page 138,. can be construed in defendant’s favor. Section 4411 merely directs the making up of the costs by the clerk,, at the close of each term of court, and if the state or county should be liable for any of such costs, to deliver a fee bill therefor to the prosecuting attorney for the county. The law of 1891 fixes the fees due officers and witnesses for certain services, and further provides that the clerk shall issue a fee bill in civil cases.

We are furthermore of the opinion that a judgment for costs of a continuance is such a final judgment, as to the matter of costs, as will authorize the issuance and levy of an execution for such costs.

Defendant, by a supplemental brief, has attacked the validity of the execution and levy, on the ground that it is issued to the sheriff, who is largely interested in the writ in that a large part of the costs for which the writ was issued are due to the sheriff himself. Defendant, as we understand his position, does not contend that a sheriff can not ordinarily levy an execution wherein he may have an interest which is a mere incident to the proceeding; but that where the judgment and execution are for costs only, such costs being principally due the sheriff, he can not legally execute the writ. It is undoubtedly true that no one can sit in judgment on his own case, nor where he is interested,' and that an officer can not either by statute or common law execute process to which he is a party, or in which he has a substantial interest. The temptation for wrong and oppression is such that no inquiry will be made as to whether the process was used unfairly or oppressively, but the law, recognizing the weakness of human nature and its tendency to selfish interest, absolutely cuts off the opportunity for wrongdoing in this respect. Thus it was held in Collins v. McLeod, 8 Ired. 221, that a sale by a sheriff under an execution issued on a judgment in the sheriff’s favor was void. And in Chambers v. Thomas, 1 Litt. 268, it was held that a deputy sheriff could not legally execute a fieri facias which issued in his own name and for his own benefit'. But such consideration is not really in this ease. Here the execution is in the name of the state, as plaintiff, and under the law, as laid down by the supreme court, the plaintiff in a judgment recovers the costs and has control of the costs, the judgment and execution, notwithstanding the court officers and witnesses may be the beneficiaries. Hoover v. Railroad, 115 Mo. 77. The execution in this case could only be issued upon the order, or with the consent of the state. The state would control the execution of the writ in the hands of the officer, without regard to the resulting interest the officer might have in it. The state, as plaintiff, could control the levy and sale and all proceedings thereunder. The sheriff in this ease was executing the writ for a third party and not for himself.

Upon the whole case presented, we are satisfied with the action of the trial court and hence affirm the judgment.

All concur.