
    Ex parte SPILLER.
    (Court of Criminal Appeals of Texas.
    June 23, 1911.)
    1. Costs (§ 322) — Criminal Prosecutions— Confinement in Jail fob Costs.
    Under Code Cr. Proc. 1895, arts. 845, 846, providing_ that, when punishment is a pecuniary fine, the judgment shall permit a recovery of the fine and costs, and that accused shall be committed to jail until they are paid, and that when the punishment is- other than a fine the judgment shall specify it, and it shall also adjudge the costs against accused and order collection thereof as in other cases, and Rev. St. 1895, arts. 3727-3751, providing for the hiring out of convicts for not more than one year, one convicted of a misdemeanor and sentenced to jail may be confined in jail for the costs not more than one year in addition to the imprisonment imposed for the offense.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1202-1206; Dec. Dig. § 322.]
    2. Costs (§ 322) — Confinement in Jail for Costs.
    Under Code Cr. Proc. 1895, arts. 1090, 1091, providing that, where accused indicted for a felony is convicted for an offense less than felony, no costs shall be paid by the state to any officer, and that the costs and the fees paid by the state shall be a charge against accused where he is convicted, except in cases of capital punishment or of a sentence to the penitentiary for life, and when collected shall be paid into the state treasury, and Rev. St. 1895, art. 3739, providing for the hiring out of a convict committed to jail in default of payment of fine and costs, one indicted for murder and convicted of aggravated assault and battery and punished by confinement in jail for 30 days may be confined in jail for the costs previously paid by the state.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1202-1206; Dec. Dig. § 322.]
    3. Costs (§ 314) — Criminal Prosecutions— Taxation — Confinement in Jail for Costs.
    A judgment sentencing one convicted of a misdemeanor to jail for 30 days and until the costs of the prosecution are paid permits the clerk to tax costs after conviction or the adjournment of the court, and the costs so taxed are a part of the costs referred to in the judgment.
    [Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 1185-1188; Dec. Dig. § 314.]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    Application for a writ of habeas corpus by Wesley Spiller for his discharge from custody. From a judgment remanding him to custody he appeals.
    Affirmed.
    J. E. Shropshire, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

On May 6, 1909, relator was indicted by the grand jury of Mc-Culloch county for the murder of A. C. Wike by cutting him with a knife.

He was tried twice on this indictment. Either a mistrial was had on the first or a new trial granted, the record does not disclose which. The second trial occurred on March 4, 1911. On that trial the court correctly charged the jury on murder in the second degree, manslaughter, assault with intent to murder, and aggravated assault. The jury found the defendant guilty of aggravated assault and battery, and assessed his punishment “at 30 days’ confinement in the county jail.” On that verdict the district court of McCulloch county rendered a judgment with the recitations ordinarily contained in the judgments of said court in such cases, and concluded the judgment as follows: “It is therefore considered and adjudged by the court that the defendant, Wesley Spiller, is guilty of the offense of aggravated assault and battery as found by the jury, and that he be punished as determined by the jury by confinement in the county jail of this county for a period of thirty days from this date, and that the state of Texas do have and recover of and from said defendant, Wesley Spiller, all costs in this prosecution expended, for which execution will issue, and the defendant is ordered Into the custody of the sheriff to be by him committed to the jail of this county there to be confined for a period of thirty days from this date, and, further, until all costs of this prosecution are fully paid.” The relator herein, the defendant in that ease, did not appeal from such judgment, and the same is still in full force and effect. On the day of his conviction the clerk of the district court issued a proper commitment bearing said date, reciting the conviction and judgment, and commanding the sheriff to commit the relator, the defendant in that case, to the jail of McCulloch county for 30 days to await the further action of the court “and until all costs of this ease is paid.” At the time this commitment was issued, there had been taxed up as costs in the case the total sum of $446.11; $351.36 of it had at that time been paid by the state. On that date the district court adjourned for that term. Afterwards from time to time other properly subpoenaed witnesses appeared before the clerk and' proved up properly before him their witness fees, and, as they did so, he taxed their fees as costs, and from time to time as the witnesses did so he issued to the sheriff capias pro fines, whereby he was commanded to safely keep the appellant in said county jail until said costs were paid and until the judgment was performed. Under the last capias pro fine issued, the costs taxed aggregated $740.71. From that time to the hearing on this habeas corpus, which occurred on May 19, 1911, $40.50 additional witness fees were proven up and taxed. So that on the trial of the habeas corpus the total costs in the case as taxed up to that time aggregated $781.21. The clerk testified on said habeas corpus trial that he would continue to tax any other additional witness fees proven up later and issue capias pro fines, including them wherever the served process showed such witnesses were properly subpoenaed, and would make the proper affidavit of attending in obedience thereto, and the sheriff testified that he would continue to hold the appellant under the commitment and capias pro fines coming into his hands until the costs in accordance therewith were fully paid.

The sheriff further showed that he kept the relator in jail from March 4, until April 4, 1911, the full 30 days on which latter date the relator presented to him his affidavit under article 856, O. O. P. 1895, and in accordance therewith. It does not appear from the statement of facts whether the appellant was put to work as provided for in said article 856 or not. We take it, however, that at the time of the making of this affidavit the purpose and object of the relator was then to be allowed $3 per day for each day he was in the county jail thereafter if not placed at work as therein provided. On May 15, 1911, the appellant applied to the Honorable John W. Goodwin, judge of the Thirty-Fifth judicial district court, for a writ of habeas corpus setting up substantially the above facts, and claiming his discharge. The ha-beas corpus was awarded by the district judge, and, after a full hearing of all the facts on May 19th, the district judge remanded the relator to the custody of the sheriff of McCulloch county to be Kid by him under the aforesaid order and judgment of the district court convicting him of aggravated assault until all of said costs are fully paid, satisfied, and discharged. The relator excepted to that judgment, and has brought the habeas corpus case here on appeal.

1. The main contention of relator on this habeas corpus appeal is that as he was convicted in said murder trial of an aggravated assault and battery and bis punishment assessed at a term of 30 days in jail only, and no pecuniary fine whatever was assessed against him, he cannot be held in confinement for the costs only; he having already been confined in jail the 30 days. The attorney for the relator has filed an able brief and also made an oral argument on the submission of the ease. He concedes that the identical question has not been decided by this court or any other in this state that can be found. We have made diligent search and have been unable to find where the question has been directly decided. The relator cites us to articles 845 to 860 of the Code of Criminal Procedure, and articles 1, 3, 5, 6, and 20 of the Penal Code of 1895, and to the cases of Ward v. White, 86 Tex. 170, 23 S. W. 981, Landa v. State, 45 S. W. 713, and 11 Cyc. 291, to sustain his position. We have carefully considered all of these authorities cited by relator, and many others which we thought had any bearing on the question, and have reached the conclusion that the district judge was correct in remanding the relator as stated. The articles of the Code of Criminal Procedure cited are under title 9, c. 3, subd. 2, and chapter 4, subds. 1, 2, of said Code. Subdivision 2 of said chapter 3 is headed “Judgment in cases of misdemeanor.” Articles 845 and 846 thereunder are as follows:

“Art. 845. When the punishment assessed against a defendant is a pecuniary fine only, the judgment shall be that the state of Texas recover of the defendant the amount of such fine and all the costs of the prosecution, and that the defendant, if present, be committed to jail until such fine and costs are paid, or if the defendant be not present, that a capias forthwith issue commanding the sheriff to arrest the defendant and commit him to jail until such fine and costs are paid. Also, that execution may issue against the property of such defendant for the amount of such fine and costs.
“Art. 846. When the punishment assessed is other than a pecuniary fine the judgment shall specify it and order its enforcement by the proper process. It shall also adjudge the costs against the defendant and order the collection thereof, as in other cases.”

It will be seen by these two articles that the first directs specifically what the judgment of the court shall be in case the defendant is convicted of a misdemeanor and a pecuniary fine only is assessed against him, to the effect that he shall be committed to the jail until the fine and costs are paid. It and other articles also authorize and direct that an execution may be issued against him for both, the fine and costs, as well as a commitment, until they are paid. The contention is made by relator that the latter part of said article 846 as follows: “It shall also adjudge the costs against the defendant and order the collection thereof, as in other cases,” as the word “collection” is used therein— does not contemplate or authorize the defendant to be incarcerated for the payment of costs alone, when no fine was assessed against the party, only imprisonment. Article 9 of the Penal Code is: “This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. * * * ” Article 25 of the Code of Criminal Procedure is: “The provisions of this Code shall be liberally construed, so as to attain the objects intended.by the Legislature: the prevention, suppression, and punishment of crime.” These rules of interpretation, enacted by the Legislature, properly applied in this case, and taking into consideration said articles 845 and 846 above quoted, convince us that the latter clause of article 846, above quoted, with reasonable certainty and clearness, shows that the costs adjudged against the defendant are “ordered to be collected as 'costs in other cases” means, other misdemeanor cases. The word “collection” used therein should not be construed to restrict the collection thereof to an execution only when in “all other misdemeanor cases” it has been universally held by this court that they can be collected and shall be collected by requiring a defendant to work in a workhouse or on a county farm (R. S. 1895, art. 3729) established by the several counties for that purpose (R. S. art. 3727); or upon the public roads, bridges, or other public works as provided by R. S. art. 3733, or hired out (R. S. art. 3744). R. S. art. 3728, expressly defines a county convict as “any person who may have been convicted of a misdemeanor or petty offense, and whose punishment has been assessed at confinement in the county jail for any term; or who, under a like conviction, has been adjudged to pay a pecuniary fine and is unable so to do.” R. S. art. 3743, provides that any county convict condemned to imprisonment in the county jail as a punish7 ment either in whole or in part may avoid manual labor in the workhouse or elsewhere by the payment into the county treasury of $1 for each day of the term of his imprisonment. Article 856 of the Code of Criminal Procedure, under which the relator made and delivered to the sheriff the affidavit above noted, provides that, when a county convict is not put at work in some of the modes prescribed by chapters 9 and 10, tit. 79, of the Revised Statutes, he shall be allowed $3.00 per day for each day he is confined in the county jail to pay out either the fine and costs or both.

Article 859, C. C. P., provides: “When a defendant has remained in jail the length of time required by the judgment, he shall be discharged,” etc., the judgment in this case evidently referring to that provided for by said articles 845 and 846, and, as held above, includes also the costs of the case as well.

The several provisions of chapters 9 and 10, title 79, of the Revised Statutes, which provide for the working or hiring out of county convicts, all provide in effect, and article 3739 expressly: “No convict under this chapter shall ever be required to work or be hired for more than one .year.” So that whatever the costs may amount to in the murder case for which the relator is confined, under no circumstances can he be confined for the costs longer than 12 months. That would be in addition, however, to the one month served by him as the penalty fixed for the commission of the offense.

2. The next contention by relator is that he should not be held for any of the costs that had been previously paid by the state and refers us to articles 1090 and 1091 of Code Civil Procedure and to Revised Statutes, article 3739. The contention is made by the relator under this ground that the claim is in favor of the state, and, as the state is never barred by limitation and as the relator cannot pay it, the state will never get it. The articles that we have cited above of the Code of Civil Procedure and Revised Statutes make it plain that the state and perhaps the officers and witnesses who are entitled to the costs taxed may never get any of it, or perhaps not but a small portion of it. This, however, does not prevent the holding of the relator in jail or at work for the length of time authorized by law. That would be to his advantage and not to his disadvantage. We cannot agree to the relator’s contention on this point.

3. The next contention by the relator is that he could not be held in custody for any of the witness fees taxed up against him in the murder case that were claimed after he was first committed under his conviction; that he was misled, because at the time he concluded to accept the conviction and not appeal, the costs had been taxed up only to the amount of $446.11.

We have been unable to find any authority that would indicate that the clerk could not tax any costs after conviction or the adjournment of the court. Under the terms of the judgment against relator, he was to be confined in jail not only the 30 days found by the jury, but further “until all costs of this prosecution are fully paid.” He is presumed to know the law and certainly knew .of the judgment rendered against him. We think neither the state nor any of the officers or witnesses would lose their costs because they were not taxed up at the time of the adjournment of the court. This is neither the practice as a matter of fact, nor is it the law. There is nothing in this contention of the relator.

There being no error in the judgment of the lower court, the judgment in this case is affirmed.  