State ex rel. Million v. Allen

• Decision Date: 16 March 1905
• Citation: 187 Mo. 560,86 S.W. 144
• Parties: STATE ex rel. MILLION v. ALLEN, State Auditor.
• Court: Missouri Supreme Court

86 S.W. 144

187 Mo. 560

STATE ex rel. MILLION v. ALLEN, State Auditor.

Supreme Court of Missouri.

March 16, 1905.

SHERIFFS—FEES—KEEPING PRISONER PENDING TRIAL.

Under Rev. St. 1899, § 3246, allowing the sheriff $1.25 per day for keeping a prisoner while undergoing an examination preparatory to his commitment, the sheriff is not entitled to that allowance for keeping a prisoner who has been arrested under a capias issued on an information and is in jail awaiting trial.

In Banc. Mandamus by the state, on the relation of George B. Million, against A. O. Allen, State Auditor. Alternative writ quashed.

Allen & Mayer, for relator. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for respondent.

MARSHALL, J.

This is an original proceeding by mandamus to compel the State Auditor to audit and allow against the state a fee bill for $46.25 costs in the case of State of Missouri v. R. W. Bevington, being $1.25 a day for 37 days, while, it is alleged, the prisoner was in relator's charge, as sheriff of Atchison county, "undergoing examination preparatory to commitment." The information upon which the alternative writ of mandamus was based states the facts to be as follows: On December 21, 1902, the prosecuting attorney of Atchison county filed in the office of the clerk of the circuit court an information charging R. W. Bevington with the felony of forgery in the third degree. On December 22, 1902, the circuit clerk issued a capias directed to the relator, as the sheriff of said county, ordering him to arrest said Bevington, to safely keep him, and to have his body before the circuit court of that county on the 26th of January, 1903. The sheriff made the arrest and kept the prisoner until January 27, 1903, when he produced his body before said circuit court; that being the first day on which there was a session of said court. On January 27, 1903, the prisoner was arraigned, pleaded not guilty, his trial was set for January 29th, and he was by the court ordered committed to the custody of the sheriff until the day of trial. On January 29th he was tried, convicted, and sentenced to a term in the penitentiary, and is now serving the same. The respondent filed a motion to quash the alternative writ on the ground that upon the facts stated the relator was not entitled to a writ. On the 24th of December, 1904, this court made an order sustaining the motion to quash, and announced that an opinion would be filed later, and in pursuance thereto this opinion is rendered.

Relator's chief contention is that under the decision of this court in State ex rel. Dickmann v. Clark, 170 Mo. 67, 70 S. W. 489, he is entitled to the fees charged. There is a vital difference between the Dickmann Case and the case at bar. In the Dickmann Case the fees were allowed because the prisoner was in the custody of the sheriff more than one day "while undergoing an examination preparatory to his commitment"; that is, the prisoner was in charge of the sheriff pending an examination by a committing magistrate as to whether or not he should be...