Blankenship et al. v. The State

Blankenship et al. v. The State. Motion to retax Cost in Criminal Case. 1. lletaxation of costs in criminal cases; costs incurred by defendant should not be included in cost-bill for which he confessed judgment.— Where a judgment is confessed in a criminal case, it is for the fine imposed and the costs incurred by the State in the prosecution, and not those incurred in behalf of defendant; and where the clerk, in taxing up the costs in such case includes the costs incurred in behalf of defendant, the costs should be retaxed on the motion made by the sureties. Appeal from the Circuit Court of St. Clair. Tried before the Hon. Leroy -F. Box. Walter Blankenship was convicted of an assault with a weapon, and fined $500. H. B. Blankenship and others confessed judgment with the defendant in open court for the said fine and costs of the prosecution. The sureties moved the court to retax the cost, on the ground that the clerk, in taxing up the costs and entering the same, included the costs incurred in behalf of the defendant in said cause, both on the preliminary trial before the justice of the peace and in the circuit court, for issuing and serving subpoenas for witnesses in behalf of the defendant, and for fees of the witnesses who attended in answer to said subpoenas. It was admitted on the hearing of the motion that these items were so included in the cost bill. The court overruled the motion to retax the costs and the movants duly excepted; and on this appeal by them assign this judgment as error. John W. Inzer and M. M. Smith, for appellant cited, Bradley v. State, 69 Ala. 318 ; Bowen v. State, 98 Ala. 83. W. C. Fitts, Attorney-General, for the State. [MAJORITY — McCLELLAN, J.] McCLELLAN, J. Cost incurred by a defendant in making defense to a charge of crime constitute a mere debt, recoverable by execution against his property or by separate civil proceeding, from him to the persons who have served him in that behalf, and-he can neither be put to hard labor for their payment nor be required as another alternative to confess judgment with surety therefor. The judgment to be confessed in such caséis for the fine and the costs of prosecution, not those of the defense.—Bradley v. The State, 69 Ala. 318; Bowen v. The State, 98 Ala. 83. The circuit court erred in overruling the motion to re-tax the costs so as to eliminate from the same sought to be collected on the confession of judgment all items of costs incurred by the defense. ..... - Reversed and remanded. ■ ■