This was a criminal prosecution for misdemeanor, commenced by the people against appellee, before a justice of the peace of Mercer county, on two complaints, upon which two State warrants were issued, and upon which appellee was arrested. Upon one of which, on hearing before said justice, the appellee was convicted, and upon hearing on the other was adjudged to pay the costs; from both of which said judgments an appeal was taken to the Circuit Court of Mercer county, under the statute granting appeals in such cases.
The appellant, clerk of that court, refusing to enter on the docket of such court the proceedings so appealed, without the payment of the fees allowed by the statute to clerks of circuit courts in this State for the docketing of causes in civil cases on appeal, and the appellee refusing to pay in advance therefor, a rule was obtained, on motion of appellee, from the Mercer Circuit Court, requiring the clerk to enter such appealed cases upon the docket of that court without the payment of his fees therefor in advance; from which judgment and order of the court the clerk appealed to this court.
By the errors assigned upon this record the only question presented is the liability of the appellee to pay the clerk’s fees in advance, or as the same may accrue in proceedings of this character when brought by appeal from a justice’s court.
We think the Constitution and the legislative enactments pursuant thereto have exempted appellee from the payment of such costs in advance.
The 19th section of the Bill of Bights in the Constitution of 1870 declares “that every person ought to obtain by law right and justice freely, and without being obliged to purchase it,” etc.
In prosecutions of the character here in question, appeals by law are allowed from the justices’ judgments to the Circuit Court of the county in which such proceedings are had.
The evident design of the above provision of the Constitution was to secure to every person prosecuted for a criminal offense — who by law, before conviction, are presumed innocent of the act charged — every just facility for a fair trial, and that such person should have the means of making his defense to such charge, whether he was of a sufficient pecuniary ability to pay therefor or not.
To withhold from such person the means of making such defense in the method allowed by law, whether by refusing process to enforce the attendance of witnesses to repel charges of guilt, or in cases where proceedings are commenced before a justice of the peace, in refusing, on appeal, to place upon the docket of such appellate court such appeal — without which a re-trial of the charge could not be had — until the person so charged should pay the docket fees to the clerk of such appellate court therefor, would, in our judgment, be a manifest violation of the letter and spirit of the Constitution, before cited.
This becomes, in our judgment, the more apparent when it is considered that the judgment in the justice court, in cases of the character here in question, may subject the appellee to imprisonment -in the county jail not exceeding one’year. That by the appeal, as provided by law, the judgment in the justice court is vacated, and a trial de novo is given to the condemned party, appellant in the Circuit Court.
This is a substantial and iznportant right granted to such person by the law of the State. In this rightful endeavor to obtain justice in the matter of such prosecution, and before such person can be lawfully condemned or punished, whether in person or property, for an alleged violation of law, he should and ought to be allowed the right of tidal as to the truth and justice of the charges alleged against him, in the several courts of the State wherein, by law, the subject-matter thereof is cognizable, whether such courts are of original or appellate jurisdiction, and that, too, without the payment of fees in advance to the officers of such courts, or, in the language of the Constitution, “ without purchasing that justice.”
By the appeal the two causes so adjudged against appellee were in the Circuit Court, and he had the same right to prosecute his appeals in that court as he would have had in the case of an indictment in the Circuit Court, and, in our judgment, the appellant might as well require the payment of fees in advance of issuing subpoenas for appellee’s witnesses on the trial of said appeal after the same had been placed upon the docket of the Circuit Court, as to require docket fees in advance for the docketing of appellee’s appeal from the justice.
It was in consonance with the same spirit of justice which prompted the insertion of the provision of the Constitution before cited, that the Legislature saw fit to exempt innocent parties who are wrongfully prosecuted for criminal offenses, from the payment of all costs, and to throw the entire burden of the defense as well as the prosecution upon the several counties of the State wherein proceedings are commenced.
The 17th section of Chap. 33, Starr & Curtis, title, Costs, prescribes that if, in any case of the people, the charge is not made out, or proved, or when verdict is rendered against the plaintiff, the defendant shall recover no costs.
If the defendant can not recover costs when discharged or acquitted, and he compelled to advance or pay costs which he can in no event recover, would it not be manifestly a purchase of justice without consideration even?
Sec. 444 of Chap. 33, supra, also provides that the defendant, in proceedings of the character here in question before the justice of the peace, may have the truth of the charges against him tried by a jury in like manner as in civil cases, hut the defendant is not required to advance the fees therefor as in civil cases before justices of the peace.
Sec. 15 of Chap. 53, R. S., title, Fees and Salaries, provides, that in all criminal cases where the defendant shall be acquitted, all the costs (including clerk’s fees), shall be paid from the county treasury.
The intent of the Legislature doubtless was that an acquittal or other legal discharge absolved the defendant from any and all liability to pay costs, including clerk’s fees, but instead thereof the clerk’s fees were to be paid by the county, and to obtain such acquittal appellant was entitled of right to the consideration and judgment of all the courts of the State having jurisdiction of such proceedings, whether original or appellate, without the payment in advance of the costs therefor. Wells v. McCullock, 13 Ill. 606; Carpenter v. The People, 3 Gilm. 147.
It is the opinion of this court that the Circuit Court decided properly in sustaining appellee’s motion and in directing the appellant to enter upon the docket of such court the appeals in the record mentioned, without the payment to appellant of fees in advance therefor, and seeing no error in the record of proceedings below., the judgment is affirmed.
Judgment affirmed.