Keys v. State ( 1881 )

Cooper, J.,

delivered the opinion- of the court.

The plaintiffs in error were indicted and convicted of the offense of destroying a corner tree. The judgment was reversed in this court, and, thereupon, the attorney-general, with the assent of the court, entered a nolle prosequi. The question now is, whether the district attorney is entitled to a fee of ten dollars.

By the act of 1879, ch. 90, which amends the Code, sec. 4542, regulating the compensation of district attorneys, it is provided that the attorney shall only be allowed the fee mentioned by the Code for “ each final conviction.” The language of the Code was for “each conviction.” The object of the Legislature was to allow the district attorney only one fee in each case, and that only on a conviction which ended the case. A conviction which is set aside, or reversed, is not final. And if, for any reason, the State abandons the prosecution at any stage of the cause short of a final conviction, the fee is not earned within the statute. No fee or other compensation is allowed unless expressly provided by law, and the service, for which the fee was granted, performed: Code, secs. 4517, 4521.

Fee disallowed.