
    Samuel White v. The State of Mississippi.
    1. Criminal law: pardon before conviction bar to court costs and witnesses’ fees. — A pardon befoi'e conviction is a bar to a judgment against the accused for court costs and witnesses’ fees.
    Error to the Circuit Court of Tippah county. Hon. A. M. Clayton, judge.
    At the September Term, 1866, of the Circuit Court of Tippah county, plaintiff in error was indicted for grand larceny. At the September Term, 1868, plaintiff in error appeared, and pleaded a pardon, granted May 14,-1868, in bar. of the indictment.- On this plea (the only one filed),- the judgment of the court was, “ that plaintiff in en’or be discharged, and go hence without day, and that he pay the clerk, sheriff, and witnesses’ costs which have accrued in this case, and that execution issue therefor.” To reverse this judgment a writ of error is prosecuted, and the error assigned here is, that the court erred in rendering a judgment against plaintiff in error for court costs and witnesses’ fees. -
    
      John W. Thompson for plaintiff in error.
    In civil cases costs are not due until the final determination of the cause. Rev. Code, 150,, art. 8.
    The law of costs shall not be interpreted as penal laws. The successful party shall recover costs, except in certain cases. There is no statute adjudging costs against an accused in cases like the one before the court. Rev. Code, 522, art. 255.
    Plaintiff in error was pardoned before trial or conviction,’ even before plea, and relied alone on his plea of pardon. 1 Ch. Orim. p, 382.
    If it is argued, that all the property of a convict is liable for costs under provisions of Rev. Code, 625, art. 320, we answer, the accused was not a convict.
    
    But it is insisted that the officers of court have a vested right to their fees, which cannot he affected by an executive pardon. In this State they have no such vested right until the final determination of the cause. Rev. Code, 150, art. 8.
    Pardons are construed most favorably for the accused. 1 Chitty’s Or. L. 629, 632; 5 Coke, 49.
    As to conclusiveness of plea of pardon, 2 Hale’s P. C. 391-2; 1 Chitty’s C. PI. 382; 3 Hawkins’s P. C., book 2, ch. 26, § 64.
    
      Jasper Myers, for defendant in error,
    cited 4 Sergeant and Rawle, 451.
   Shackelford, C. J.,

delivered the opinion of the court.

The plaintiff in error was indicted at the September Term, 1866, of the Tippah Circuit Court, for robbery.

At the September Term, 1868, of the said court, the plaintiff in error appeared, and was arraigned by the court, when he pleaded a pardon for the offence of which he stood charged in said indictment, and in bar of the same.

The pardon was under the great seal of the State, granted by B. G. Humphreys, Governor of the State of Mississippi, dated on the 14th of May, 1868, and filed with the plea.

The language of the pardon is, “a full pardon for the crime wherewith he stands charged, and do authorize a dismissal of all proceedings against him on account thereof, and his discharge from custody.”

The judgment of the court, after reciting the pardon, discharges the defendant, and orders “ that he go hence without day,” “ and that the defendant pay the clei’k, sheriff, and witnesses’ costs, which have accrued in this case,” etc.

This writ of error is prosecuted to reverse this judgment.

The only error complained of is the portion taxing the plaintiff in error with the costs of the case.

The court seemed to proceed upon the idea, either that the officers of court and the witnesses in the case had a vested right to the fees accrued in the case before the plea of pardon, or that, by the production of the pardon, it contained the evidence of his guilt, from the fact of his refusal to be tried under the indictment, and procurement of the pardon; and that for these reasons he should be taxed with the costs up to the time of the filing of his plea.

There could be no question as to the liability of the plaintiff in error for the costs if he had been convicted by a jury, and he had pleaded it in bar of the execution of the sentence.

It seems to us, that the discharge by the court of plaintiff in error, after the hearing of his plea in bar, was equivalent to an acquittal by jury.

The position that the officers of the court have.a vested right or lien for their costs as fast as they may accrue in a case, we do not think tenable. This could only be when one party or the other is bound for the costs without any conditions of liability at the commencement of the suit, and which could not be avoided by any result in the case.

In the case before us, under tbe practice in our circuit courts, tbe question of liability for costs had to await tbe determination of tbe case, they having adopted tbe rule laid down in our Code, i). 150, art. 8, regulating tbe practice in civil suits, where it is held that costs accruing upon suits in any of tbe courts of this State, shall not be due until tbe final determination of said suits, and then shall be adjudged to tbe successful party, and collected by execution out of tbe party losing the case.

In tbe case before us, tbe plaintiff in error did not lose bis case; if be bad committed the offence charged in tbe indictment, be bad a pardon for it; bis plea in bar was sustained by tbe court by which tbe State was defeated. A discharge under this plea of pardon did not place tbe question of liability for costs in a different attitude than a discharge under any other plea in bar to tbe indictment would have placed him.

There being no statute in this State prescribing any rule in criminal cases for tbe taxation of costs, tbe circuit -courts had necessarily to adopt tbe same rule in criminal cases as established in civil cases. Under art. 8, p. 150 of tbe Eev. Code, tbe reasons for tbe adoption or enactment of art. 8, referred to, necessitated tbe adoption of a similar rule, in tbe adjudication of costs in State cases.

Tbe decision in tbe case before us is a departure from tbe rule universally adopted by tbe circuit courts, and acted upon by them in State cases in this State, and in most of tbe States of tbe Union.

Tbe reasons for tbe ruling of tbe judge who tried tbe case at bar, ordering the plaintiff in error to pay the costs in the case, we can only conjecture.

Under any view of the case taken by tbe judge below, we think be misapprehended tbe law, and tbe judgment should bo reversed, and that tbe proper judgment should be entered in this court, releasing tbe plaintiff in error from all liability for tbe costs adjudged against him in tbe court below.  