The State ex rel. Selleck v. Gordon

• Decision Date: 06 January 1914
• Citation: 162 S.W. 629,254 Mo. 471
• Parties: THE STATE ex rel. BEN SELLECK et al., Relators, v. JOHN P. GORDON, State Auditor
• Court: Missouri Supreme Court

162 S.W. 629

254 Mo. 471

THE STATE ex rel. BEN SELLECK et al., Relators, v. JOHN P. GORDON, State Auditor

Supreme Court of Missouri, Second Division

January 6, 1914

Writ issued.

Ben E Hulse for relators.

John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.

WILLIAMS C. Roy, C., concurs.

OPINION

Mandamus.

WILLIAMS C. --

This is an original proceeding by mandamus to compel the State Auditor to audit and allow a certain fee bill for costs, now due the relators, and incurred in the circuit court of Ralls county, Missouri, at the October term, 1909, thereof, in the case of State of Missouri v. Ben Selleck. The questions to be determined are purely legal in their nature, the facts involved being admitted by both parties. The facts, necessary to an understanding of the legal questions involved, are as follows: On the 15th day of March, 1909, the prosecuting attorney of Ralls county, Missouri, filed in the circuit court of said county an information in the case of State of Missouri, as plaintiff, against Ben Selleck, as defendant, charging the defendant with the crime of seduction under a promise of marriage. Said cause was set for trial at the October term, 1909, of said circuit court. At said term, said cause was, upon the application of the State of Missouri and by order and judgment of said circuit court, continued; and all the costs incurred in said cause at said term were, by order and judgment of said circuit court, adjudged and assessed against the State of Missouri. At the October term, 1910, of the said circuit court, the defendant entered a plea of guilty and was, by the said circuit court, sentenced to three years' imprisonment in the penitentiary. Defendant paid all the costs in said cause except the costs incurred at the October term, 1909. Later a fee bill was made out covering the costs which were incurred at the October term, 1909. Said fee bill contained items of costs due the clerk amounting to eleven dollars, and fees due the sheriff in the total amount of $ 55.75. Two of the items as to the Sheriff's fees which are questioned, were as follows: "To 220 miles traveled both ways in summoning witnesses for State at 5 cents per mile, -- $ 11. To 245 miles traveled both ways in summoning witnesses for defendant, at 5 cents per mile, -- $ 12.25." Then follows the itemized list of sixty-three witnesses showing the fees and mileage due each witness. Thirty-six of said witnesses have for value received assigned their said fees to said Ben Selleck, and the remaining witnesses, the sheriff and clerk are joined with said Selleck as relators herein. The total amount of the fee bill is $ 315.25. This fee bill was duly examined by the circuit judge and the prosecuting attorney and properly certified by them to the State Auditor for payment. The State Auditor refused to audit and allow the cost bill, assigning the following reasons for such refusal: (1) The defendant having been convicted at the October term, 1910, the State by virtue of section 5376, Revised Statutes 1909, was not liable for the costs assessed against it at the time the continuance was granted; (2) that the items allowing the sheriff fees for mileage were illegal because the statute allowing the sheriff mileage in subpoenaing witnesses in criminal cases was first enacted during the term of office of said sheriff.

OPINION.

I. It is contended by respondent that since the defendant was, at a later term, convicted, the State is not liable for the costs which were adjudged against it by the circuit court, upon the granting of its application for a continuance of the cause at the October term, 1909.

Section 5203, Revised Statutes 1909, is as follows: "Continuances may be granted to either party in criminal cases for good cause shown, and the court may postpone the trial of any such case for good and sufficient reasons, of its own motion. When a continuance is allowed on the application of either party, it shall be at the costs of the party at whose instance it is granted, unless the court otherwise direct."

Section 5376, Revised Statutes 1909, is as follows: "Whenever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for board, shall be paid by the State or county."

Section 5377, Revised Statutes 1909, provides: "And in all cases in which the defendant shall be sentenced to imprisonment in the penitentiary," etc., "the State shall pay the costs, if the defendant shall be unable to pay them, except costs incurred on behalf of defendant . . . ."

In discussing the question we shall make no distinction between the costs incurred upon the part of the State and those incurred upon the part of the defendant, for the reason that it is not claimed that defendant is unable to pay the costs but the decision of the question here involved will turn upon the construction to be given the foregoing statutes and more particularly on the construction to be given section 5203, supra. It will be noticed that said section deals with a special...