Fanning v. State

• Decision Date: 27 November 1886
• Parties: FANNING v. STATE
• Court: Arkansas Supreme Court

2 S.W. 70

47 Ark. 442

FANNING v. STATE

Supreme Court of Arkansas

November 27, 1886

APPEAL from Boone Circuit Court, Hon. I. M. PITTMAN, Judge.

Judgment reversed.

O. W Watkins for Appellant.

The prosecuting attorney is entitled to one fee only for a conviction in each case, no matter how many defendants there may be. Sec. 3233, Mansf. Dig.; Bouvier L. D., title "Conviction;" 1 Bishler, Law, sec. 223; 1 Blatchf 459; 10 Sm. and M., 192; 5 Ark. 536; ex parte Jerry Murphy St. Louis Ct. Appeals, 1886, Mss.; 25 Ark. 235; Dwarris St., p. 644.

Dan W. Jones, Attorney General, for Appellee.

Sec. 3233, Mansf. Dig., allows a fee for each conviction, and there was a conviction of each defendant in the case.

OPINION

SMITH, J.

Sixteen persons, having been jointly indicted for a misdemeanor and having pleaded guilty, were condemned to pay a fine of $ 10 each and the costs of the prosecution. As a part of the costs, the clerk taxed up against each defendant a fee of $ 10 in favor of the prosecuting attorney. The defendants moved for a re-taxation of costs, alleging that the attorney prosecuting for the state was only entitled to one fee in the entire case; but the circuit court denied their motion.

Section 3233 of Mansf. Dig., allows a fee for each conviction and the question is, whether there have been sixteen convictions, or only one.

If there is a doubt as to the meaning of the statute, that doubt must be resolved against the officer. For statutes regulating costs are construed strictly. Fees for constructive services are in no cases allowed. Those who serve the public must rest content with the compensation provided by the plain letter of the law. Shed v. Railroad Co., 67 Mo. 687; Crittenden county v. Crump, 25 Ark. 235; Cole v. White county, 32 Ark. 445.

But we apprehend there is no ambiguity in the statute. A conviction is defined to be "that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence or judgment is founded." Bouvier's Law Dict., title "Conviction." Bishop says it is "finding a person guilty by verdict of a jury." 1 Cr. Law, sec. 223. Here has been but one indictment, one, plea, one legal proceeding of record, one judgment, and consequently but one conviction, although several persons were included in the accusation and are affected by the proceeding and judgment. There has been but one case between the state and the defendants. The prosecuting attorney has drawn but one indictment and has represented the state at but one trial. He has rendered substantially the same service which he would have rendered if the indictment had been against one defendant. And any reasoning which allows him sixteen fees for performing one service, or set of services, would entitle the clerk to sixteen fees for entering the judgment.

Now, such a construction might become oppressive. Defendants who are jointly indicted and who do not sever, are liable for all the costs of the prosecution; although payment by one inures to the benefit of all. Mansf. Dig., sec. 2339. One of these defendants might have been able and willing to pay his fine, and the prosecuting attorney's fee of $ 10, and the other costs. Could he be held and hired out as a convict if he refused to pay the costs that were taxed on account of his co-defendants?

Costs in a...