ON Application eob Eíeheaeing.
FRICK, C. J.Appellant has filed an application for rehearing and for a modification of the judgment rendered against him for costs. He asserts that no costs can be taxed against him under the Constitution and statutes of this State. Article 1, section 12, of the Constitution of this state, so far as it relates to costs, provides: “In no instance shall any accused 7 person, bef ore final judgment, be compelled to advance money or fees to secure the rights herein guaranteed.” (Italics ours.) Compiled Laws 1907, section 4514, is a transcript of the foregoing provision. Section 4966, the only other section that directly relates to the taxation or recovery of costs, provides that in criminal cases both the clerk of the district court from which the appeal is taken, and the clerk of this court, must perform all the services usual in appeal cases without charge. It follows, therefore, that in criminal appeals no costs can be taxed for fees or costs that are usually taxed as clerks’ fees.
*275There are other statutory provisions from which it is manifest that after judgment of conviction — that is, after a final judgment has been entered against a defendant in a criminal prosecution — he no longer need be, nor is, protected by the state against costs. Nor is there any good reason why the taxpayers of this state should provide the means whereby those who are convicted of crime may have their cases reviewed on appeal by this court, unless such persons avail themselves of the statutory provision intended for those who are impecunious, and hence unable to pay the costs on appeal. By referring to sections 727 and 1016,. it will at once be seen how and under what circumstances one accused of crime, even after conviction, may escape the payent of costs. We know of no other way that one convicted of crime may escape the payment of costs after final judgment, except by following the methods pointed out by the section referred to. Moreover section 5155 provides that any one who is convicted of a crime may be. punished by fine or imprisonment, or by both, and that such punishment may be with or without costs; and section 4925 provides that if costs are imposed the payment thereof may be enforcéd by execution, as in civil cases. There seems to be no doubt that after final judgment that one who has not shown himself unable to pay costs by reason of his impecuniosity may, and ordinarily should, have the costs taxed against him. While in this court no costs may be taxed for clerk’s services, yet at least the costs provided for by Rule 11 (97 Pac. viii) of this court, which the state is required to pay for printing briefs, should be taxed against appellant.
As the judgment entered by the clerk of this court in this case in terms is broad enough to cover all costs, it is ordered that the same be, and it hereby is, modified so far as to include only the costs that may be taxed, as provided by Rule 11 of this court.
In view of what has been said, it follows that the application for a rehearing should be denied. It is so ordered.
McCARTT, J., concurs. STRAUP, J., dissents.