Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-20
DECISIONS OF THE sUPnE can
ORFTcIAL.
Opinions of the Supreme Court OF IN,
state OF renRessee, as Jacksen, April
aerms 1885,

Opinions of the Supreme Court Of the
state OF Tennessee, as Jacksens April
Fucker & Oaks vs. stats
| This is a motion to retax costs.
Tucker was indicted for murder and upon the
! plea Of not guilty, acquitted upon the merits
] of the case at the July term 1855 of the Circuit
Court of Gibson county.
Upon the trial Oaks examined as a witness for
| the notwithstanding been summoned for him. His
fees amounted to SIS 90; and the Clerk having
taxed them against the defendant he and Oaks
moved that they be taxed against the State which
the Circuit Court refused to do.
This Judgment of the Circuit Court was we
think, correct 1t IS established principle of the
Common Law. that costs are not to be recovered by
the prisoner from the Government This principle
hath always prevailed in this State. Even statute
which directs the county. State to pay COSTS is to
be expoundet, limited to the costs Of the prose
cutien. unless further intention he shown to en-
brace the costs of the defendant. The State cannot
be taxed with the prisoners costs by implication OF
conjecture 70 do SO, the intention must be clSar
Statev Burton, Hump. lS. Price State, aunlp
l37.
There Is nothing in section 55sl Of the Code nor
in any other section Of that or the subsequent art
Gle, which changes the principle. It is true that
sections 55Sl and 53S2 do provide that any person
tried for public offence, and acquitted en- the mer-
it's shall pay costs; and that in all other cases
the defendant shall pay the costs of witnesses sum
moned by him, And by section 5jS3, if the defend
ant Is convicted Of a criminal 0ffense he shall pay
sill the costs which have accrued in the cause.
II may be not be very clear, from these sections
taken above, whether It meant, that where
person was tried for public offence and acquitted
on the merits, no judgment shall go against him for
his own costs-eaving the parties to their remedies
at Common Law, or judgment shall be rendered
against the State OF county for the same or whether
it shall remain paid altogether.
We are now only to decide as to the liability of
the State. And section $685. Of the Code and the
subsequent sections of that and the next article
plainly shows that the Common Law principle re-
mains unchanged
There was not only an entire absence of any pro-
visions 10 charge the State but it is obvious such
thing was intended
To demonstrate this, we need only refer to section
5,as5, which provides that the State county,
oording to the nature of the offence pays the costs
accrued on behalf Of the State, in the following
cases
|. When the defendant is acquitted by the verdict
Of the jury upon the merits.
2. When tho prosecution is dismissed, OF q note
pr0seQui entered by the State
g. When the action has abated by the defendant
4. When the defendant is discharged by the Court
or Magistrate before indictment preferred found,
or after Indictment and before verdict.
When the defendant has been convicted, but the
execution issued upon the Judgment has been re-
turned 9ulq bona This legislation, and indeed, the
entire legislation Of these two articles of the Code,
when all the sections are considered are at war
with the idea that the State is to be taxed with the
defendants costs.
We are bound to suppose the doctrine well es-
tablished in 3 and Humphreys, was familiar to
the Legislature. If so, and the State was to be
made liable to the defendants costs, how easy to
have so said In express terms?
The Judgment OF the Circuit Court viii be affirm
ed. WRIGHT.