The state, through the able district attorney of Van Zandt county, files a motion for rehearing insisting that this appellant should be confined in the county jail of Van Zandt county until he has discharged at a credit rate of $1 per day the full amount of $621, same being the amount of costs in three felony cases in which the punishment was by fine and imprisonment. It is admitted in the statement of facts that the costs above referred to have all been paid by the state, but the contention now made seems in some way to insist that by keeping this appellant confined in jail and allowing him a credit of one *Page 175 dollar per day for 621 days, that a situation will arise out of which the county should refund to the state said sum. Analysis of this proposition seems to make clear the fact that the county, if the contention of the state be correct, would have to care for and feed this appellant as an inmate of the county jail for practically two years, and in addition would have to then from some fund in some way pay into the state coffers the sum of $621. As said by this court in Ex parte Hill,111 Tex. Crim. 426, 15 S.W.2d 14, there is no such law. It is also pointedly held in the case just referred to that there is no provision made by which the county can be compelled to refund to the state what is supposed to represent costs paid out by the latter to officers, as earned by them in the prosecution of one who has been charged with a felony and convicted and punished by fine and imprisonment. We think the learned district attorney misapprehends the holding of this court in Overstreet v. State, 112 Tex.Crim. Rep.,15 S.W.2d 1039. In that case, — and the law of every case is controlled by the facts before the court, — we merely held that one on trial for a felony, which included a misdemeanor, who was convicted of such included misdemeanor upon the felony trial, could be compelled to pay the costs accruing upon thattrial, by the ordinary means resorted to to collect costs in misdemeanor cases. It seems necessary for us to make a distinction between the costs incurred in other and former trials of such cases, which costs have already been paid by the state, and those costs accruing upon the trial which results in the misdemeanor conviction.
If in the instant case it was not admitted in the statement of facts that the costs amounting to $621 had already been paid by the State, a different legal question might be presented, but there being such admission, the case is controlled by what we said in Ex parte Hill, supra. It might be possible that if this appellant had been put upon trial and convicted and punished by fine and imprisonment, and the costs of that trial taxed against him, and no attempt made to collect them otherwise than through imprisonment in the county jail, this court might hold upon such as it did hold in the Ex parte Hill case, supra.
Being of opinion that the case was properly decided originally, the state's motion for rehearing will be overruled.
Overruled.