I. Section 2828, Revised Statutes 1899, provides that “when any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs.” The prosecutor is liable for costs when the accused is committed or recognized by the' examining magistrate to answer for a felony and no indictment is found, or if the person charged with a felony is discharged by the officer taking the examination (section 2835, R. S. 1899), or when upon the trial of any indictment or information the defendant is acquitted and the offense is such as makes the prosecutor liable for costs (as for assault and battery). Sec. 2836, R. S. 1899. The county is not liable in case of misdemeanor, unless the defendant be acquitted and there is no prosecutor who is liable for costs or in eases when the defendant is convicted and is unable to pay the cost. Secs. 2830 and 2831, R. S. 1899. Haas, the prosecutor, is not liable for any of the costs that accrued in the prosecution of appellant, nor is the county of Newton liable unless the appellant is unable to pay the costs of the judgment against him; hence it is, if the costs which accrued before the justice are not properly chargeable against the defendant, they can not be taxed as costs in the case at all.
The contention of appellant is that the case that was brought before the examining magistrate is not the same case that was begun in the circuit court by the filing of the information presented by the prosecuting attorney, and in support of his contention cites City of Pilot Grove v. McCormick, 56 Mo. App. 530; The State v. Powell, 44 Mo. App. 21. In each of these cases it was held that an affidavit of a private individual, made under statutory provisions for the apprehension of an offender, was not the commencement of a criminal prosecution and that such prosecutions were not commenced until there was *451an indictment or information filed. The scope and purpose of article 2 of practice and proceedings in criminal cases (vol., 1, p. 657, R. S. 1899) is not to commence a prosecution against the accused but is for the purpose of making a preliminary examination to ascertain whether or not a crime had been committed, and if so, whether or not there is probable cause to believe the accused to be the guilty party, and if so found by the magistrate to commit him to jail or put him under a recognizance to answer an indictment therefor to be preferred by the grand jury, or, as the law now is, to answer either an indictment or an information. The primary object of a preliminary examination is to hold the accused, if there is probable cause to believe him guilty, in jail or under a recognizance to answer a legal and a formal charge by indictment or information to be thereafter filed in the proper court.
Section 2854, Revised Statutes 1899, requires a justice of the peace to make out and certify and return to the clerk of the circuit court of the county, a complete fee-bill, etc., of the costs which accrued in making preliminary examinations. After the information was filed by the prosecuting attorney in the circuit clerk’s office, it would have been a useless thing for the justice to have proceeded with the examination of the appellant. He could not discharge him without making an examination, and had be done so the sheriff was present-armed with a warrant for'the appellant’s arrest. To have made the examination and committed appellant would have accomplished no useful purpose, for the sheriff, was present with a warrant for his arrest and commitment. The justice could not take his recognizance after his arrest by the sheriff and had he done so, before the arrest of the sheriff, the latter officer’s duty would have been to disregard the recognizance and to re-arrest the appellant on the warrant he had from the circuit clerk’s office. The functions of the examining magistrate were at an end and he very properly transmitted the proceedings had before him with the bill of costs to the clerk of *452tbe circuit court, and we tbink tbis bill of costs.was properly taxed against tbe appellant under our statutes regulating costs in sucb proceedings.
Before the amendment to tbe Constitution, .permitting prosecuting attorneys to prefer an information of felony against a citizen, it not infrequently happened that pending a preliminary examination before- an examining magistrate the grand jury would meet and take up tbe investigation of tbe charge, when tbe magistrate without making an examination of the defendant would transmit tbe papers together with his bill of costs to tbe circuit clerk. These bills of costs have been uniformly taxed against tbe defendant if he was indicted and convicted. Tbe propriety of so doing has not, to our knowledge, been called in question by tbe profession or any auditing officer of the State. Similar conditions exist in tbe case at bar and we tbink that the law authorized tbe taxing of the costs that accrued before tbe examining magistrate against the defendant.
The contention of appellant that he was not convicted of the same offense of which he was charged before the examining magistrate is without merit. The charge of grand larceny includes all the inferior grades of the same offense and the fact that appellant pleaded guilty of petit larceny was a confession of guilt of the larceny charged by Haas in his affidavit and by the prosecuting attorney in the information. The larceny charged in the affidavit and information were of the identical goods of Haas, and the offenses are identical.
II. In respect to the fees of the jurors, there are but two sections of the statutes relative to jurors, summoned as these were. Sections 3784 and 3257, E. S. 1899. Section 3784 provides for the payment of jurors not on the regular panel in criminal cases where the offense charged is punishable with death or by imprisonment in the penitentiary for life or for not less than a specified number of years and no limit to the time is fixed, that they are allowed one dollar for each day of *453their attendance on court and five cents per mile for traveling in going to and returning from the court. Section 3258, except as otherwise provided by law, allows one dollar per day for each juror attending a trial. The offense charged against the appellant is not in the class mentioned in section 3784. The appellant was not tried at all and, therefore, the jury did not attend a trial. It follows that there is no warrant in law for taxing these fees as costs in the case.
The judgment is reversed and the cause remanded with directions to the circuit court to set aside its order overruling the motion to disallow costs, to reinstate the motion and to overrule it in respect to all costs that accrued before the examining magistrate, and to sustain it as to all costs that have been taxed against the appellant as juror’s fees.
Barclay and Goode, JJ., concur.