
    State v. Arnold.
    (Nashville.
    February 5, 1898.)
    Cbiminal Costs. Taxing on conviction of misdemeanor under indictment for felony.
    
    Where, under an indictment for felony, the defendant is convicted of a misdemeanor, the State must pay all costs incident to the prosecution for the felony, which is held to embrace in this ease the entire bill of co.sts, $839.14, except State and county tax and fine, and a few items of clerk’s fees, aggregating $105.15.
    Cases cited: Loyd v. State, MS.; State v. McBride, MS.
    PROM DAVIDSON.
    Appeal in .error from Criminal Court of Davidson County. J. M. Anderson, J.
    Attorney - general Picks and W. H. Washington for State.
    A. J. Caldwell for Arnold.
   Wilkes, J.

This cause is before us .the second time upon an application to retax costs. Upon the former hearing the cause was remanded because proper application had not been made and refused in the Court below. The indictment- was for malicious stabbing; the conviction was for assault and battery. In other words, an acquittal as to the felony, and conviction of a misdemeanor. A fine of $75 was imposed by the Court. When the cause was remanded to the Court below', a reference was made to the Clerk to report what costs were incurred by witnesses summoned on the part of the State to show malice and prove the felony and to retax the costs. The Clerk reported the entire amount of costs as $839.14, and that $28.91 of this amount was incurred in the effort to prove malice and make out the felony, and should be taxed to the State, and the remainder of $810.23' should be paid by the defendant. The defendant excepted to the report, admitting his liability for various items, amounting to $105.15, and insisting that the remainder, of $733.99, should be taxed to the State. This exception was overruled, and the defendant appealed.

The case of John Lloyd v. State, decided at Knoxville, September term, 1877, is a case directly in point — an indictment for malicious stabbing, with an acquittal of the felony and conviction of the misdemeanor of assault and battery. It was held, in that case, that the State must pay all costs accrued in attempting to make out the felony, and that the difficulty in separating the costs that accrued as to proof of felony must not result in taxing them to the defendant. A similar ruling was made in this Court in the. case of State v. William McBride, decided at Nashville in 1876, not reported. It is said that the witnesses examined were, with few exceptions, eye-witnesses, and must, necessarily, have been examined whether the case was prosecuted as a felony or misdemeanor. But it is evident that it makes a material difference to a defendant whether he is being tried for a felony or misdemeanor. In the former case he will not be content unless he has exhausted all the evidence and brought to bear all the defenses he can command, while in the latter he might be willing to submit or make an inexpensive defense. If the State sees proper to prosecute for a felony it must take the risk of being successful or paying 'costs if it fail, and defendant cannot be required to pay or work them out. In this case the items admitted by the defendant to be legitimately taxable to him are: State tax, $5; county tax, $5; Attorney-general’s fee, $5; fine to county, §75; and some items of Clerk’s costs. Without investigating each of the small items, we are satisfied that the defendant should be taxed with no more than he has admitted his liability for.

He will, therefore, be taxed with said sum of §105.15, and the remainder and costs, of this application and proceeding, to retax in this Court and Court below will be' paid by the State, and the costs are re taxed accordingly.  