Thomas J. Patton was indicted for a misdemeanor in the circuit court of Ouachita county. He filed a demurrer to the indictment which the court overruled and adjudged that he pay all costs in and about the d.emurrer expended.
He then pleaded not guilty, was tried and acquitted, and the final judgment was that he “be discharged and that ■Ouachita county pay all costs'herein expended.”
In taxing up the costs in the case, the clerk taxed defendant with costs on the demurrer to the indictment, $7,30, including a fee of $5 to the prosecuting attorney. Defendant filed a motion to retax the costs, which was overruled by the court, and he appealed.
It is submitted for appellant — first, that he should have been taxed with no costs; and second, that if taxable with the costs of the demurrer, there is no statute allowing the prosecuting attorney a fee of $5 on a judgment merely •overruling 'a demurrer to an indictment.
I. Ordinarily, the costs in a criminal case will abide and follow the final judgment. But, if in the course of the prosecution, the court has specially adjudged the cost of some particular matter against defendant, the general judgment for costs against the county on his acquittal will not. relieve him from such specially adjudged costs.
II. There is no statute allowing a prosecuting attorney a fee of $5 on a judgment overruling a demurrer in a criminal prosecution. In criminal prosecutions he is allowed no fees except on convictions. — Fees Act. thirteenth Dec.,, 1875, sec. 1.
He is allowed a fee of $5 “ for each judgment obtained on complaint, information, or otherwise in the name of the State or any county,” — lb. But this has no application to-a judgment merely overruling a demurrer to an indictment, in a criminal case.
Reversed and remanded to the court below with instructions to sustain the motion to retax the costs, by striking-from the costs taxed against appellant the fee of $5 to the prosecuting attorney.