dissenting. I ain not able to concur with either the argument or the conclusion of the majority of the court in the foregoing opinion. If the principle involved was not of grave importance in the administration of .criminal jurisprudence, I should content myself with a simple dissent; but regarding the opinion and judgment of the majority of the court as fraught with the gravest consequences, and imposing burdens upon the people in criminal prosecutions never contemplated by either the Constitution or the law framed under it, I feel it my duty to give my reasons for disagreeing with the majority of the court.
The record in this case discloses the fact that Isaac Artz, appellee, had been duly convicted according to law, upon two charges of misdemeanors, before a justice of the peace, upon a trial had, and that final judgment had been entered against Artz before the justice.
The justice had jurisdiction of the offenses charged and nothing is suggested in the record that he did not proceed according to the forms of law, nor is anything suggested that the defendant did not have allowed to him all the privileges lie was entitled to under the law. In short, he had a trial on a criminal charge before a court having original jurisdiction and was duly convicted and judgment of conviction rendered against him.
From this final judgment he prayed an appeal to the Circuit Court, as he had the right to do, and when he requested the clerk to docket the transcript, the clerk demanded his fees before docketing, which appellee refused to pay, and a rule of court was entered compelling appellant to docket the cases without being paid his legal fees therefor, from which order the clerk appeals to this court.
I hold that, after appellee had been once convicted before a justice of the peace, he had then had his trial contemplated by the law, and that the judgment of the justice was just as final and binding on the defendant as it would be before the Circuit Court, until appealed from. So long as that judgment stood against him he was not in the attitude of an innocent person. He was already convicted of a criminal offense. The Constitution and all the statutes quoted in the opinion of the majority of the court, relating to the rights of persons charged with crime, to have justice “ freely ” administered to them, and to have counsel assigned them, and to have process free and the services of the officers free, relate to a time anterior to the judgment of conviction. It relates to the trial and to the proceedings leading to the trial. A trial in the first instance upon a criminal charge, to ascertain the guilt or innocence of the accused, is a very different thing from an effort to obtain an appeal from a judgment of conviction. After he has had a trial and been found guilty, his right to perfect an appeal at the expense of the officers of the court, or the people, ceases, and he must then pay his own way, certainly to the extent of perfecting his appeal to the Circuit Court, and other superior courts. What his rights might be on a trial d,e novo after he had perfected his appeal and got it in the Circuit Court, is not involved in this controversy, and'I express no opinion upon it. The Supreme Court has expressly recognized this distinction in the case of Carpenter v. The People, 3 Gilm. 147.
The facts in that case were only different from the one at bar in this, that here the appeal was from a justice of the peace to the Circuit Court, and in that case the appeal was from the Circuit to the Supreme Court.
Carpenter sued out a writ of error to the Circuit Court and made a bill of costs in prosecuting his suit, and in the Supreme Court procured a reversal of the judgment. The clerk of the Supreme Court issued a fee bill against Carpenter for the costs he had made, and Carpenter entered a motion to quash the fee bill, insisting that he was not liable for costs in a criminal case, and quoted to the attentive ears of the Supreme Court the language of the Constitution, and the various enactments of the Legislature supposed to relieve criminals or supposed criminals of this State from the burden of paying costs in the various courts of the State, in their efforts to elude the ends of justice and escape convictions had against them in the trial courts, but the court denied the motion and held Carpenter liable to pay the costs he himself had made. Judge Treat in his opinion uses this language: •“ The general principle on the subject of costs is that the party who requires an officer to perform services for which compensation is allowed, is in the first instance liable therefor. In legal contemplation he pays the costs as they accrue. On this ground the successful party in civil actions recovers a judgment for his costs. The only difference between a civil and criminal case is that the successful defendant in the latter is not entitled to a judgment against the State for his costs. He is nevertheless liable to pay them to the officer unless our statute excepts his case from the operation of the general rule. There are some special provisions of the statute relative to the fees of the clerks of the Circuit Courts and sheriffs in eases where the defendant is acquitted, but there are none which apply to the fees of the officers of this court in such cases.
“ The ninth section of the eighth article of the Constitution does not exempt the defendant in a criminal prosecution from liability for costs. It is the opinion of the court that Carpenter is liable for all the costs made by him in'the prosecution of his writ of error.”
The question again came before the court in the People ex rel. Mans v. Harlow, 29 Ill. 13. In that case Mr. Chief Justice Catón said: “ So far as we are advised it has been uniformly held both by the Supreme and Circuit Courts that the clerks may insist on their fees as their services are performed, and this we have no doubt is the law.”
These two cases seem to me to be conclusive upon the point involved in favor of appellant. I have been unable to find any subsequent decision which in the slightest degree militates against the full force of these cases.
There is not only no statute relieving the appellee from the payment of these fees, but on the contrary there is a positive statute requiring him to do so.
Sec. 389, Chap. 38, R. S. 1887, provides: “ The defendant may appeal from the judgment of the justice of the peace, in criminal cases, to the Circuit Court of the county, the appeal to be taken in the same time and manner and upon the same conditions and with like effect and like proceedings had thereon as in civil cases, except that no damage shall be allowed.”
How there can be, and is no claim, that if the case had been a civil one the defendant would have been compelled to pay all costs as they accrued, and the above section declares that defendants in criminal cases shall do the same thing.
Sec. 19 of the Bill of Eights of our Constitution, which provides that “ Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain bylaw, right and justice freely, and without being obliged to purchase -it, completely and without denial, promptly and without delay,” which is relied on in the opinion of the majority of the court as justifying the defendant in prosecuting, his appeal without costs to himself, I insist has no relation to the cases and can have none. The section of the Constitution quoted is broad and sweeping in its terms, and applies as well to civil as criminal proceedings, making no reference to either; and it is just as applicable in its florid and flamboyant provisions to civil as to criminal proceedings, and yet no one ever dreamed that he could go into a court with a civil case, and have justice “freely” administered to him, even under the broad mantle of the above clause of our Constitution.
If the defendant in this case had the legal right to have the clerk docket these cases for him without charge, then that right must be placed on the broad ground that it is placed upon by the majority of the court, under the provisions of the Constitution above quoted, that he shall obtain justice “freely,’’ ^and the same rule of exemption will exempt not only him, but every person ever convicted of high or low crimes in this State; and he may prosecute his appeals and writs of error from the lowest to the highest court in this State at the expense of the State and the officers of the courts. Suppose he is convicted in the Circuit Court; the judgment is no more final than it was before the justice, and no more effective to punish him. He has a right to a wiitof error from the Supreme Court and to have the record transferred to that court.
If he has the right to the services of the clerk to docket 1ns transcript, at a cost of perhaps fifty cents, free, he has precisely the same right to demand of the clerk a transcript of the record free with which to go to the Supreme Court, without reference to the size of the record or the amount it would cost the clerk to prepare it, and by the same right compel th 3 clerk of the Supreme Court to docket his case and issue the necessary process free of charge, notwithstanding the rule of the Supreme Court requiring a docket fee.
But this claim has been expressly denied in Carpenter v. The People, 3 Gilm. 147, supra. Such a rule or such a claim of right to the services of the clerks of courts free, by convicted criminals in search of appeals and writs of error, after conviction, would involve, in many important criminal cases, most serious and .ruinous consequences upon clerks. The convicted anarchists of Chicago might have said with the same propriety and the same legal right, to the clerk of the Criminal Court of Cook County, that they required the record of their trial, containing many thousand pjages, transcribed free of all expense to them, which the defendant in this case required of the clerk below — that his services must be rendered free. The difference is only in the magnitude of the work, and not in the principle involved.
Nor does the fact that the trial and conviction was had in different courts make any difference in principle, for the incredible logic of the contention of the defendant is, that he is exempt everywhere from liability for costs in a criminal proceeding against him. The mere circumstance that he is in one court or the other has no significance, nor does the constitutional provision above quoted and relied on by the majority of the court, make any distinction as to time, place or circumstances, to which the “free” administration of justice shall be limited.
There is no provision in the Constitution or any of- the statutes, that a person convicted of a criminal charge shall have the services of officers free in one court, but that he shall pay for them in another. If he is protected in one court, then in all, and if not in all, then in none, except in cases before conviction, where positive and affirmative enactments relieve him from costs; but this case is not within that exception.
The case of Wells v. McCullough, 13 Ill. 606, cited by the majority of the court in support of the judgment, I hold, has no reference to the case at bar, either in its facts or legal application, and does not support the judgment of the court.
The trial in that case was had on an original indictment, and the costs accrued in the progress of the trial before conviction, and the defendant was acquitted. The clerk of the court, after the trial was over, and after defendant was discharged, issued a fee bill against the defendant for costs made during the progress of the trial and in its preparation.
A motion was made to quash the fee bill, which was allowed. This ruling was held correct under the eighth section of Chap. 41, R. S., in which is this provision: “ And in all criminal cases where the defendant shall be acquitted, or otherwise legally discharged without payment of costs, the clerk shall receive such compensation as the County Commissioners shall order, not exceeding $30 per annum.”
And in this same case the court refer to Carpenter v. The People, 3 Gilm. 147, and say there is no conflict between the cases, and re-affirmed the Carpenter case.
Had Wells been convicted, as was Artz in this case, and a final judgment passed against him, then the case would have been like the one at bar, and the opinion of the court the same as it was in Carpenter’s case, supra.
For these reasons I am unable to concur with the majority of the court and think the judgment ought to he reversed.