State v. Montroy

• Decision Date: 04 August 1923
• Citation: 217 P. 611,37 Idaho 684
• Parties: STATE, Respondent, v. GILBERT MONTROY, Appellant
• Court: Idaho Supreme Court

217 P. 611

37 Idaho 684

STATE, Respondent, v. GILBERT MONTROY, Appellant

Supreme Court of Idaho

August 4, 1923

TAXATION OF COSTS IN CRIMINAL CASES-IMPRISONMENT OF CONVICTED DEFENDANT FOR NONPAYMENT OF COSTS - COSTS STATUTES CONSTRUED.

1. Under C. S., sec. 9038, a convicted defendant may be imprisoned for the nonpayment of costs of prosecution taxed against him.

2. Costs of prosecution taxed against a convicted defendant under C. S., sec. 9038, do not constitute a debt within the constitutional inhibition against imprisonment for debt.

3. Where a defendant charged with the commission of a felony is convicted of a lesser and included offense, the statutes of this state do not provide for a segregation of the costs of prosecution or their apportionment, as between the two grades of crime.

4. Held, that the trial court committed no error in its final judgment and order taxing costs of prosecution against the defendant, in the absence of a showing on behalf of defendant that the items of cost taxed were not properly incurred and could not have been legally assessed in the prosecution and conviction of the defendant for a misdemeanor.

5. The punishment of imprisonment which is allowed by C. S., sec 8248, to be imposed as the alternative of a fine, has nothing to do with the imposition of imprisonment for the nonpayment of costs of prosecution under the provisions of C. S., sec 9038.

6. One convicted of a criminal offense under the laws of this state cannot be imprisoned for the nonpayment of the fees and mileage of witnesses whose testimony was necessary to establish his defense, when such witnesses were required to be called and produced for such defendant at public expense pursuant to the provisions of C. S., sec. 9135.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Appeals by state and defendant from order retaxing costs and judgment. Sustained.

Judgment sustained.

James F. Ailshie, Jr., for Appellant.

One convicted of a misdemeanor cannot be assessed the costs incurred by the prosecution in a futile effort to convict him of a felony. (Biester v. State, 65 Neb. 276, 91 N.W. 416; State v. Arnold, 100 Tenn. 307, 47 S.W. 221; 5 Standard Proc. 760.)

One convicted of a misdemeanor upon an indictment and trial for a felony cannot be imprisoned for the purpose of paying the costs that accrued on the trial of such felony charge. (Smith v. State, 105 Ark. 58, 150 S.W. 149; 5 Standard Proc. 760; Burch v. Dooley, 123 Ind. 288, 24 N.E. 110.)

When the court had been satisfied that the defendant was without any means, it could not thereafter impose an alternative judgment of imprisonment for costs, for the reason that having previously determined that the defendant could not pay the costs such judgment would ipso facto become a judgment of imprisonment for debt and in violation of sec. 15, art. 1, of the constitution.

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

Where an accused is charged with a felony and conviction is had of a misdemeanor included within the felony, all costs of prosecution may be recovered against the accused. (C. S., secs. 8997, 9038, 9353; State v. Belle, 92 Iowa 258, 60 N.W. 525.)

An accused is not excused from the payment of all costs of prosecution by a showing that he is financially unable to pay the costs assessed. (C. S., secs. 9038, 9135, 9353.)

An accused upon conviction may be imprisoned for failure to pay costs. (Re Lucas, 17 Idaho 164, 104 P. 657; Re Walton, 17 Idaho 171, 104 P. 659; State v. Anderson, 31 Idaho 514, 174 P. 124.)

FEATHERSTONE, District Judge. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

FEATHERSTONE, District Judge.

--The defendant in this case was informed against by Roger G. Wearne, Esq., prosecuting attorney of Kootenai county, upon the charge of assault with a deadly weapon, but was convicted upon trial of only simple assault. The state thereupon filed a cost bill aggregating $ 484.65, and the defendant was sentenced to pay $ 100 fine and costs, the judgment providing that in default of the payment of fine and costs, the defendant be confined in the county jail of said county for 292 days, the date of imprisonment to run from the day of his delivery to the sheriff of said county.

Included in the bill were items aggregating $ 292.40 expended by the county for the defendant's witnesses, he having obtained an order pursuant to C. S., sec. 9135, which is hereinafter quoted in full, requiring the county to pay their fees and mileage.

The defendant objected to the whole of the cost bill on the ground that the costs were incurred in an effort to convict him of a felony, of which, by his conviction of the lesser, included offense, he had been acquitted; and objected particularly to the further taxation of the items aggregating said sum of $ 292.40, for the fees and mileage of witnesses subpoenaed and called by him, and which, by said order, the county was required to pay.

Upon a hearing of these objections the trial court struck from the bill the fees and mileage of defendant's witnesses, and taxed the costs at the difference between the amount of the bill and said sum, and assessed the costs at $ 192.15. Thereupon a modified judgment was entered in conformity with said order of which only the following excerpt is material here": . . . . It is ordered and adjudged by and is the sentence of this court that you pay a fine of $ 100, together with the costs and disbursements of this action taxed and allowed in the sum of $ 192.15 and, in default of the payment of said fine and costs that you, the said defendant, Gilbert Montroy, be confined in the county jail of Kootenai county, Idaho, one day for each $ 2.00 of said fine and costs, to wit: for the period of 146 days, the date of imprisonment and confinement to commence to run from the date of your delivery to the sheriff of Kootenai county."

The defendant has appealed from the original judgment, as well as from the order retaxing costs, and from the modified judgment based thereon in so far as these imposed costs upon the defendant and imprisonment at the rate of one day for every $ 2 of the costs; and the state has appealed from the order and modified judgment in so far as these reduced the amount of the costs originally taxed.

The question thus presented is: Did the lower court err in reducing the costs at all, or should he have disallowed the whole bill?

Considering, first, the question as to whether the trial court erred in retaxing costs in the sum of $ 192.15, and entering judgment thereon of imprisonment in the event of the defendant's failure to pay the same, the defendant's contention is that, having been acquitted of the felony charge by his conviction of an included misdemeanor, he cannot be taxed with costs incurred by the state in an effort to convict him of the felony.

The trouble with this proposition is that no showing was made to the trial court that any of the items taxed were not properly and legally incurred in the prosecution and conviction of the defendant of the misdemeanor. Therefore, no segregation which is not an arbitrary one can be made, and besides, there is no statutory authority for an apportionment.

Counsel for the defendant, however, earnestly contends that the defendant had no opportunity to avoid the costs incurred in the effort of the state to convict him of a felony, as he could not have insisted upon the acceptance of a plea of guilty to the offense of which he was ultimately convicted, and cites Biester v. State, 65 Neb. 276, 91 N.W. 416, and State v. Arnold, 100 Tenn. 307, 47 S.W. 221. But quite as reputable authority is found aligned against this contention. See State v. Belle, 92 Iowa 258, 60 N.W. 525, and State v. Granville, 26 Kan. 158, the opinion in the latter case being written by a jurist of no less eminence than the late Mr. Justice Brewer.

Here, again, we have no statute which takes such a situation into account. And, in the absence of legislation, the courts of this state can provide no remedy, unless by the situation which has resulted the defendant has been deprived of some constitutional guaranty.

But the defendant does not claim that his constitutional rights have in this respect been invaded. He merely asserts that there is no warrant of law for taxing these costs against him under the circumstances. This requires an examination of the statutes.

C. S., sec. 8882, provides that "The plea of not guilty puts in issue every material allegation of the indictment." And C. S., sec. 8997, provides that "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense." By C. S., sec. 8812, these provisions are made applicable to informations.

Reading sections 8882 and 8997 together, the plea of defendant placed in issue every essential element not only of the felony charged, but of the included offenses as well. There was then tendered but one issue, namely, the guilt or innocence of the defendant of the offenses charged.

C S., sec. 9353, reads as follows: "At the close of every trial for any offense against the laws of this state the costs thereof shall be paid as by law provided, but by way of indemnity to the county the whole amount of such costs, including the costs of examination if such shall have been had, in cases wherein the...