
    The State v. Thurston and Others.
    Wednesday, June 5.
    
    When a person accused of a crime before a justice of the peace, is recognized to appear in the Circuit Court, and is convicted in that Court, the costs of the examination before the justice should not be included in the judgment.
    ERROR to the Franklin Circuit Court.
   Dewey, J.

— This was a motion made in the Circuit Court to tax costs. The defendants in error, with several other persons, were prosecuted before a justice of the peace for a riot. The accused parties took a change of venue to another justice, who inquired into the charge, and recognized several of them to appear before the Circuit Court. An indictment was found against the defendants in error for the riot complained of, they were tried, convicted, and fined; judgment accordingly, and for the costs of prosecution. The question presented by the motion to tax the costs is, whether the convicted persons were liable for the costs which were made before the examining magistrates. The Circuit Court held them not to be so liable.

This question depends entirely upon statutory provisions. The indictment is founded upon the act respecting crime and punishment, the 78th section of which provides that “ prosecutions” in the Circuit Court, under that act, shall be instituted by presentment or indictment. R. S. 1838, p. 219. The 80th section enacts that, in all cases of conviction of any offence named in the statute, the costs of “prosecution” shall be included in the judgment rendered against the convict, unless the jury expressly find otherwise. Id. 220. A justice of the peace, who recognizes a person accused before him, is bound to send up the recognizance to the Circuit Court; but he is not required to accompany it with a transcript of his proceedings, nor with a statement of the costs of examination. ■ R. S. 1838, p. 360. Had the legislature designed that these costs should be taxed against the convict in the Circuit Court, it is reasonable to suppose they would have required them to be certified up, and expressly included them in the judgment. We are strengthened in this conclusion by the fact, that they did make such provisions in cases of misdemeanors triable before justices and appealable to the Circuit Court. Those cases, when appealed, commence in the Circuit Court “ de novo by indictmentbut the justice is required to send up a transcript of his proceedings, and the costs made before him are required to be taxed against the convict in the Circuit Court. Id. 362.

G. Holland, for the state.

J. M. Johnston, for the defendants.

We think the term, “prosecution,” in the 80th section of the act respecting crime and punishment, in feference to the costs for which a convicted person is liable, has the same meaning expressed by it in the 78th section, and does not extend beyond the presentment or indictment. We do not mean to say, however, that the same word, as used in other parts of the statute, has not a more extended signification.

The judgment of the Circuit Court is correct.

Per Curiam.

— The judgment is affirmed.  