State v. Leidy

ELLISON, J. — The prosecuting attorney of Andrew county filed an information with a justice of the peace against John Leidy, Shell Horn and Charles Thomas for disturbing the peace of William Carson. The information did not purport to be given on the knowledge, information or belief of the prosecuting attorney. It was sworn to by Carson; and the justice entered on his docket that the information 'was made [64] by tbe prosecuting attorney and was “based on tbe affidavit of said William Carson.” The defendants were found guilty in tbe justice’s court, but on appeal they were acquitted. No judgment was rendered for tbe costs. Afterwards tbe clerk of tbe circuit court issued execution against Carson for tbe costs made in both courts. Carson thereafter filed bis motion to quash tbe execution, which being overruled, be appealed to this court. Tbe points presented here are that there was no judgment for costs in fact entered against Carson; and that there could not be such a judgment rendered for tbe reason that Carson was not tbe prosecuting witness. We find that tbe record fails to show any finding by tbe court, directly or indirectly, that Carson was tbe prosecuting witness. Neither does it show that any judgment was rendered against him. Indeed there is no judgment in tbe case, not even of discharge of tbe defendants. Tbe only thing appearing is tbe verdict of acquittal. In such circumstances we must reverse tbe judgment. Reliance is placed by tbe State on tbe case of State ex rel. v. Hodges, 53 Mo. App. 532, decided by tbe St. Louis Court of Appeals. That case was where it was sought to mandamus tbe prosecuting attorney of Stone county to sign a fee bill against tbe county for tbe costs of a prosecution where tbe defendant was acquitted of an assault and battery. Tbe point decided in that case was that tbe county was not liable for tbe costs and therefore the judgment of tbe Court of Appeals was that mandamus would not lie against tbe prosecuting attorney to compel him to sign a fee bill putting tbe costs upon tbe county. That case did not decide that an execution could be issued against a prosecuting witness for costs without first rendering a judgment. Tbe Revised Statutes of 1899, section 2836, contemplates that when tbe prosecuting witness is liable for tbe costs, “judgment shall be rendered against such prosecutor.” Reversed. All concur.