Overstreet v. State

We have no doubt of the fact that one may be prosecuted by an indictment charging murder, which is a felony in this State, and be convicted of an aggravated assault, which is a misdemeanor. Bean v. State, 25 Texas Crim. App. 346. We are not able to agree with appellant's contention that the classification of a particular case as a felony or a misdemeanor depends upon the indictment and not upon the judgment of conviction. The fact that one is indicted for a felony when convicted for an included offense which is a misdemeanor, would not seem to us to prevent the case in its last analysis from being classed as a misdemeanor. See Art. 1019, also 1027, C. C. P. We are satisfied that in this case appellant was convicted of a misdemeanor, in which case no costs of *Page 185 this trial are payable to any officer, out of State funds; nor do we find any provision in Chapter 3, Title 15, C. C. P. relating to costs, which would warrant holding the costs in a case like this payable out of county funds. Chapter 4 of said Title, however, sets out in substance and at length that all costs in misdemeanor cases shall be taxed against the defendant. This case in its disposition by the jury being brought into the class just mentioned, the costs of this trial were properly taxed against the appellant.

There may be some confusion resulting from the various amendments to our statutes relating to costs, in case an attempt be made to tax against the accused costs of prior trials upon indictments charging felonies in which there were no convictions of misdemeanors but the trials resulted in mistrials or convictions of felonies which were reversed. Cases of that character seem referable to the rule laid down in Ex parte Hill cited in our original opinion. As we understand the case before us, the costs taxed against appellant were merely the costs of the trial upon which he was convicted of a misdemeanor, and as said in our original opinion, the rule stated in Ex parte Hill has no application.

Being unable to agree with the contentions made by appellant, and believing that the costs were properly taxed against him, the motion for rehearing will be overruled.

Overruled.