State v. Anderson, WD40574

• Decision Date: 11 October 1988
• Docket Number: No. WD40574,WD40574
• Citation: State v. Anderson, 758 S.W.2d 500 (Mo. App. 1988)
• Parties: STATE of Missouri, Plaintiff, Adair County, Missouri, (Third Party Plaintiff), Respondent, v. Lana L. ANDERSON, Defendant. Appeal of PETTIS COUNTY, MISSOURI, (Third Party Defendant).
• Court: Missouri Court of Appeals

Page 500

758 S.W.2d 500

STATE of Missouri, PlaintiffAdair County, Missouri, (Third Party Plaintiff), Respondent, v.Lana L. ANDERSON, DefendantAppeal of PETTIS COUNTY, MISSOURI, (Third Party Defendant).

No. WD40574.

Missouri Court of Appeals Western District.

Oct. 11, 1988.

Jeff Mittelhauser, Pros.Atty., Sedalia, for appellant.

Tom Hensley, Pros.Atty., Kirksville, for respondent.

Before COVINGTON, J., Presiding, and NUGENT and GAITAN, JJ.

COVINGTON, Judge.

Pettis County appeals from an order requiring the county to pay as costs a portion of sheriff's deputies' salaries incurred during a trial held in Adair County on a change of venue from Pettis County.

The facts are not in dispute.The underlying action was a first degree murder case tried by a jury in Adair County after having been sent to Adair County on a change of venue from Pettis County.The trial commenced January 11, 1988, and ended January 16, 1988.The defendant was found guilty of murder in the first degree, and the jury recommended life in prison without probation or parole, a sentence which the trial court subsequently imposed.

During the trial, the Adair County sheriff's department provided courtroom security.Special arrangements were made to assure appropriate security for all jurors during the time that they were sequestered.The defendant was in custody throughout the trial and courtroom security was enhanced to protect the interest of all parties.Regularly employed Adair County sheriff's deputies were required to work overtime, and other individuals were hired to work as special temporary deputies.The parties agree that the reasonable expense for the Adair County sheriff's deputies' salaries incurred as a result of the trial was $4,939.26.

Subsequent to the sentencing of the defendant, the prosecuting attorney of Adair County moved to have the deputies' salaries taxed as costs.The parties stipulated that the $4,939.26 was a necessary and reasonable expense.After written suggestions prepared by prosecuting attorneys of both counties, the trial court ordered that Pettis County pay all costs, including the charges made by the sheriff's department in the amount of $4,939.26.

The trial court's order indicated that it would not be fair to expect Adair County to bear the expense of the additional salaries of the deputies.Perhaps regrettably, however, there is no statutory authority for taxing of the salaries against Pettis County as costs, and the judgment must be reversed.

In taxing the deputies' salaries against Pettis County, the trial court relied upon § 550.120, RSMo 1986¹, which states in pertinent part:

In any criminal cause in which a change of venue is taken from one county to any other county, for any of the causes mentioned in existing laws, and whenever a prisoner shall, for any cause, be confined in the jail of one county for an offense committed in another county, and in which costs are liable to be paid out of a county treasury, such costs shall be paid by the county in which the indictment was originally found or the proceedings were originally instituted

....

Disposition of the issue presented turns upon the construction to be given "costs" in this context.

At common law, costs in a criminal case were unknown.State v. Wilbur, 450 S.W.2d 458, 459(Mo.App.1970).Consequently, recovery and allowance of costs depends exclusively upon statutes imposing liability.Statutes imposing costs are penal in nature and must be strictly construed.Cramer v. Smith, 350 Mo. 736, 739, 168 S.W.2d 1039, 1040(1943).

Likewise at common law, counties are not liable to pay any costs.Where the common law is changed by statute, the county is liable only to the extent authorized.20 C.J.S.Costs§ 441(a)(1940).

The term "costs" generally includes only those items connected with the actual presentation of testimony and the fees of specified officers, and courts hesitate to expand the meaning of the term.Id. at § 453.Missouri statutes specifically provide, for example, for taxing as costs the following: deposition expense, § 492.590;court reporter fee, § 485.120; cost of witnesses, §§ 550.170,550.280; fees due jurors, § 550.280; and sheriffs, county marshals or other officers' fees for...