State v. ArmStrong

The opinion of the court was delivered by

Mount, J.

Appellant was convicted of assault- and from a judgment imposing a fine he appeals. On June 12, 1901, after a preliminary examination, appellant was bound over to appear before the superior court -of Ohehalis county to answer a charge, of assault with a deadly weapon. On July 11, 1901, an information was filed charging appellant with that offense-. On October '4, 1901, upon motion of appellant, the action was dismissed by the court, and the defendant discharged, for the reason that t-hei cause had not, been brought to trial within sixty days after the filing of the information. Thei’eafter, and on the same day a new information was filed charging the same offense. Appellant moved to- quash this last information upon the ground that the same was filed more than thirty days after the transcript, of the preliminary examination was filed. This motion was denied, and a plea of not guilty entered, and a trial and conviction of assault followed. A judgment imposing a fine of $150 and costs was thereupon entered. A cost bill amounting to $159.30 was subsequently filed. Included in the cost bill were the following items: Clerk’s costs, $9.45; sheriff’s fees, $11.85; jury fee, $12. Appellant moved to- -strike these items from the cost bill, and the motion was denied. The errors relied upon are: (1) In denying the motion to quash the information; (2) in admitting cross-examination of defendant ns to certain difficulties previously had; and (3) in denying the motion to retax costs.

1. The statute expressly provides at § 6916, Bal. Code, that the order of dismissal, under the sections by authority of which the appellant, was. dismissed, shall not he a bar if the offense charged be a, felony. The offense charged in the first information was a felony. The offense charged in the information upon which appellant was tried was also a felony. The prosecuting attorney was authorized to file the information at any time within the period of the statute of limitations'. The effect of the dismissal in the casei was to release the defendant from the costs of the prosecution up1 to that time, and to discharge him from custody, or release his bail. The filing of the new information was the1 commencement of a neiw action for the same offense. The fact, that the jury returned a verdict of guilty of a misdemeanor would not affect the offense charged, so as to make the former dismissal a bar to the action. The statute reads: “But it is not a bar if the offense charged be a felony.” The offense charged is the guide for the court, and not the verdict rendered upon a trial of the offense charged. It was, therefore, not error tu deny the motion to quash, or to overrule the demurrer, or to deny the motion for a directed verdict, or to deny the motion in arrest of judgment; all of which motions were based upon the fact that the verdict rendered found the defendant guilty of a misdemeanor.

2. Upon the trial, while defendant was a witness in his own behalf, he was asked the following question on direct examination: “Hava you had any other trouble, —other than this alleged offense?” This question was intended to relate 0to trouble with the prosecuting witness, but in the course of his answer defendant remarked, “Well, I always try to get along with my neighbors.” The prosecuting attorney, on cross-examination, was permitted to interrogate the witness with relation to qxxarrels and fights with others of his neighbors. We think this evidence was competent to rebut the statement made in reference to his peaceable disposition, and it was not erx*or of the trial court to allow the examination.

3. It is urged that the court' erred in refusing to strike these items from the cost bill, viz.: Clerk’s costs, $9.45'; sheriff’s fees, $11.85; jury fea, $12. Section 1629, Bal. Code, provides as follows:

“Every person convicted of a crime, or held to hail to- keep! the peace, shall he liable- to all the costs of the proceedings against him, including, when tried by a jury in the superior court, $12 for a jury fee.”

Section 6975, Bal. Code, is as follows:

“When the defendant is found guilty, the -court shall render judgment accordingly, and the defendant shall be liable for all costs, unless- the court or jury trying the cause expressly find otherwise.”

Under § 22 of article 1 of the constitution, axxy person accused of crime is entitled to have compulsory process for witnesses, and shall not before final judgment be compelled to advance money or fees to secure these rights. Under § 1609, Bal. Code, the clerk is authorized to- charge for official services, a fee for issuing each subpoena, and for docketing the canse, etc. The sheriff is entitled to charge a fee for serving subpoenas, and for mileage. It is argued that, because the clerk and sheriff are salaried officers, and .the county is not required to pay special, fees for this class of service, these itans are not. properly taxable as costs in a criminal cause. We are of the opinion that, since the legislature did not see fit to limit these “official services” .to civil causes, the fees, provided were intended to appjy to criminal cases as well.as civil, and that, therefore, costs for sxxch services in criminal cases may he taxed and recovered against a person convicted of crime as part compensation to the county for salary-advanced to such officers-.

Finding’ no- error in the record, the cause will in all things he affirmed.

Reavis, C. J., and Anders, Dunbar, Fullerton, Hadley and White, JJ., concur.