
    State ex rel. F. G. Hopkins, Plaintiff, v. Justices of Buchanan County Court, Defendants.
    
      Criminal Practice — Costs—Execution.—When a party indicted for a misdemeanor confesses the action and judgment is entered against him for the costs, if the defendant be unable to pay the costs, they mast he paid by the county— Gr. S. 1865, ch. 219. A dismissal of the case at defendant’s costs by an agreement of the defendant and prosecuting attorney with the assent of the court, is a confession of the action and is equivalent to a conviction. The issuing of an execution for costs by the clerk of the court is the proper method of determining the ability of the defendant to pay the costs.
    
      Petition for Mandamus.
    
    The petition was as follows :
    Your petitioner, P. G. Hopkins, respectfully represents that he is clerk of the Circuit Court of Buchanan county, State of Missouri, duly elected, qualified, and acting as such, and was at the time of the rendering of the services mentioned in the fee-bill hereinafter set forth; that at the-term of thetfircuit Court within and for the county aforesaid, H. W. Smith was by the grand jury indicted for selling whiskey without a licence; that said indictment was at said term duly returned into court endorsed “a true bill” and signed by the foreman; that the process was ordered thereon by the court and duly issued by petitioner, and served by the sheriff; that all of the services charged in said fee-bill were rendered by your petitioner in the discharge of his duties as clerk of said court; that at the - term of said court,-•, 18 — , the circuit attorney, with and by the consent of said court and the agreement of the defendant in said indictment, dismissed the same at the costs of said defendant, and judgment was rendered accordingly ; that execution was issued thereon, but the same could not be collected ; that said defendant was wholly insolvent, and is still insolvent; that said fee-bill was duly examined by the judge and circuit attorney of the court in which said judgment was rendered, and certified to the County Court for payment, according to the provisions of the statute in such cases made and provided, but said County Court, consisting of defendants, refused and still refuse to allow and order the payment of the same or any part thereof; he, your petitioner, therefore prays for a mandamus against said defendants, returnable' this day, requiring them to pay said fee-bill, or show cause why a peremptory mandamus compelling them to do so should not be issued.
    Answer of defendants:
    The plaintiff and defendants agree that the petition herein filed for a mandamus may be considered at the present term xipon the following agreed state of facts:
    1. It is agreed that the services were rendered as charged, but the defendants objected to paying them upon the following grounds: 1st. In this case the cause was dismissed, by the agreement of the prosecuting attorney and the defendant, without conviction or a plea of guilty. The County Court objects to pay the costs in said cause because there is neither a conviction or acquittal, but simply an arrangement between the attorney and defendant that he shall not be prosecuted if he will pay the costs.
    2. If this judgment has any validity the County Court claims that it amounts only to a naked dismissal, and the costs charged by the circuit clerk for issuing execution, and all increased costs based upon the assumed validity of the judgment against the defendant, are improperly charged against the county.
    
      Woodson, for plaintiff.
    The plaintiff relies upon the 219th chapter of the General Laws, commencing at p. 865; also upon the case of State v. Beard, 31 Mo. 34.
   Fagg, Judge,

delivered the opinion of the court.

This is a petition for a mandamus requiring Philemon Bliss, George Schriber, and Monroe Boyer, justices of the County Court of Buchanan county to allow and order the payment of a bill of costs, alleged to be due the petitioner as the clerk of the Circuit Court of said county, under and by virtue of the provisions of chap. 219 of G-eneral Statutes of Missouri. The case is presented here upon an agreed statement of facts, and requires but a brief consideration.

It is claimed that the liability of the county in this instance is fixed by the second section of that chapter: “ The county in which the indictment is found shall pay the costs in all cases where the defendant is sentenced to imprisonment in the county jail, and to pay a fine, or either of these modes of punishment, and is unable to pay them.” The facts in relation to the services for which the petitioner claims that he is entitled to the fees as charged are set out in the petition, and admitted to be true by the defendants. It seems that at the-term of the Buqhanan Circuit Court, one H. W. Smith was indicted by the grand jury for selling whiskey without a licence. At a subsequent term, the circuit attorney, acting under the consent of the court and by agreement with the defendant, dismissed the prosecution at defendant’s cost. The costs were all regularly taxed, including a charge by the clerk for issuing an execution against the defendant, and were certified to by the judge and cir■cuit attorney in the manner pointed out by the statute. It .is claimed that the county is not liable because, 1st. There was no conviction of the defendant; and 2d. If it is bound for any portion of the costs, it ought not to be required to pay any that accrued subsequent to the order of dismissal.

The judgment for costs in every criminal case where there is a conviction necessarily follows as a part of the punishment inflicted. The conviction of the defendant is the evidence fixed by the statute for determining his liability to pay the costs of the prosecution. If the conviction is for a felony and he is unable to pay them, the costs are then paid by the State; if for a misdemeanor, by the county. What difference can it make to the county whether he is tried and convicted of the offence charged against him, or voluntarily confesses the charge to be true ? In either case he would be required by tbe judgment of the court to suffer the penalty imposed by law. In this case the judgment of the court entered upon his own voluntary assumption to pay the costs was sufficient to bind him for that purpose. In other words, he has by his own act fixed his liability to pay the costs, and if unable to pay them, the county is just as much bound as if his liability had been fixed by law. We can perceive no reason why the services rendered in issuing the execution were not as necessary as any others charged for. It was perhaps the most satisfactory way in which the ability of the defendant to pay costs could be determined. In any event it followed as a necessary incident to the judgment against the defendant, and should be paid as well as the remainder of the bill.

A peremptory mandamus will be issued.

The other judges concur.  