The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-06-29

Z. 4
I'll: COMMONWEALTH OF VIRGINIA,
OFFICE OF TIE AUDITOR
OF PUBLIC ACCOUNTS, ~
-. RICHMOND, June II, 1878.
WilliGm g. Taylor, Esq:
Dear Sir.-I have received your favor Of
the 10th instant, in which you inquire,
What would be the proper fee OF Com
monwealtll's attorneys in cases Of joint in
dictment for Inisdemeanor?" You then
state n case by way Of illustration, thus !:
g Nine parties were jointly indicted, and
there was but one trial for all. The ques-
ton is whether the Commemorative at
torncy should receive first niue fees Of five
dollars each from the Commonwealth, and
then receive nine fees Of five dollars each
from the defendants"
|. / answer ,--.,z
1st. Section II, chapter 54, OF the Code OF
1873, page 524, provides that in cities and
towns OF over five thousand inhabitants the
duties, compensation, and liabilities OF
clerks, &C.. &C.. and Commemorative al
torneys, shat be the same as aCers pre-
scribed 6y the Ia,cs in force, &C., .aohen the
Constitution a1ds GdOntea, &C., &c. The
law in force at that time is in the following
words-to wit:
: "And III addition shall tttc Commons.
wcalth's attorney be allowed not exceed
ing ten dollars for every case Of felony and
FIVE dollars for every case OF n1isdemeanor
prosecuted and tried in any circuit, county,
or corporation court, or in which there
may beaiudgmentfort the Commonwealth"
(See Session Acts 1S85-'G6-'G7, page 900,
section I. at the top OF the page.)
ney for the Commonwealth in a city
| ko,r ,;,hr r,nr,1atinn &c fpa
thousand inhabitants is entitled to fee Of
ten dollars in every case OF felony, and five
dollars in every case Of mis- demeanor prose-
cuted and tried in his court. You will note
the language Ci the statute: "Erery case of
felony or. msdemcanor prosecuted and
sried'" But suppose number OF persons
were Jointly indicted, as in the case stated
by you, what fee shall the attorney receive /?
answer in The language OF Attorney-Gen-
era Field, il letter to me. He says: :" In
trials OF mislenleanor, where two OR more
are Jointly indicted, there is no right in the
accused to demand separate trials. (See
| Commonwealth rs. Lewis & Diviney, 20
Grattan, p. $751; There is, therefore, only
one trial, tlpugh hundred persons may
be on trial il the case, and 3ut one fee OF
five dollars can be allowed the attorney for
the Commonwealth" ...
Your second inquiry il whether, having
received the fee from the Commonwealth,
the attorney is entitled also to the fee taxed
In the costs against the defendant! / an
swer, Not at all. Section 16, chapter 1S1,
OF the Code OF 1873, says: "1n case
wherein there is Judgment or decree on
behalf Of the Commonwealth for costs
there shall! be taxed n the costs the charge
actually incurred tc give any notice. al
though it be more tlan fifty cents; and the
fees of attorneys and other officers fcr ser.
vices, and allowances for attendance, as II
such fees and allowances: were payable out
Of the treasury. WHAT is so taxed for fees
or allowances to anyperson shall be paid to
him by the sheriff o: officer who may re-
ceiye said costs, unlss such person snail
previously have received payment thereon );
in which case the sane shalt be- paid into
the Treasury" Thissection applies to mis-
dcmeanor as we'll ito; civil cases. Sec An
elea rs. ConlnIonW Wellth, 10Th Grattan, page
7C5, at the bottom OF the page, where Judge
Lee, in delivering tic opinion o. the Court,
says so expressly. '.. 80 g.,
~The Lcgishtnrcin requiring the fees Of
Commonwealth's sttorneyS, &c, taxed i'll
the costs to be paid into the Treasury in
cases where they had been previously paid
to them, shows very clearly that t'c0 fees
were not intended to be allo vcd in the same
case, but that the payment required to be
made into the Treasury was to reimburse
the Commonwcalthfor What had been pre-
viouSly paid out. Upon this point quote
again from the Letter OF the Attorney-Gen-
cral: "ThiS fee OF s. in misdemcanor cases
may be received from the State Treasury or
from the sheriff VIXEN he collects from the
accused the costs OF the prosecution. lie is
not entitled to receive it from both. ii he
receives it from the sheriff, then he must
rot call upon the Treasury. Ii he receives
it from tie Treasury, then the MrcasurY
must lie reimbursed when the sheriff col
lects the costs under the execution"
My opinion, then, is
First. That the Comronwealth's attor-
uey in cities and towEs OF 5000 inhabitants
is entitled to fee OF IS in every misdc-
maanor case prosecuted and tried. Prose-
cuti0n and trial are essential.
Second. That where several persons are
Jointly indicted they have no right to de-
mand separate trials, and that hence, there
being but one prosecution and trial, the at
torney is entitled tC but one fee, and that
iee'of S5.
Third. That where the attorney has re-
ceiyed his fee from the Commonwealth he
is not entitled to the ice taxed in the costs,
but that this fee, when collected, is required
to be paid into the Treasury for the reasons
have stated.
/ am, very truly, yours,
WILLIAM i. TAYLOR,
Auditor Public Accounts.
Ci,f,, I.,.iti 10