(concurring specially).
I concur in the conclusion of the majority opinion that the imposition upon an unsuccessful appellant of the costs of prosecution pursuant to Minn. St. 633.23 violates neither the United States nor the Minnesota Constitutions. However, the adverse effect of this statute in terms of deterring defendants from exercising their right to a jury trial de novo following conviction in municipal court (pursuant to Rule 28.01, Rules of Criminal Procedure) presents a substantive matter for remedial action by the *400Minnesota Legislature. Such action would be consistent with, and more fully effectuate, one of the purposes of eliminating or restricting the jurisdiction of justice of the peace courts, viz., to correct the historic abuses surrounding the assessment of costs against criminal defendants in those courts. See, Minn. St. 487.35, subd. 1. At a minimum, the successful defendant should be allowed to tax costs against the state. This would eliminate what the American Bar Association Project on Standards for Criminal Justice has criticized as an “unacceptable deterrent to taking appeals.” The Commentary to Standard 2.3, Standards Relating to Criminal Appeals, explains:
“Financial considerations are not only relevant to indigent appellants. A defendant who is not impecunious also has a monetary problem of serious dimension if, projecting that he appeals and succeeds in his appeal, he is still left with the costs of the proceeding. The customary rule is that the costs of a proceeding may not be recovered from a state in the absence of a particular provision authorizing such recovery. This certainly can dissuade some defendants from appealing. A study in New York nine years ago, based upon questionnaires sent to practicing lawyers, indicated that appeals were taken in less than one-fourth of criminal cases in which the lawyer thought appeal was desire-able. The costs of appeal were the factor deterring the appellants. Willcox, Karlen, & Roemer, Justice Lost — By What Appellate Papers Cost, 33 N.Y.U.L. Rev. 934, 936 (1958). Moreover, our usual attitude toward assessment of costs points toward recovery by the prevailing party. Such statutes should exist in all jurisdictions. * * * Alternatively, the costs of preparation of the record might be borne by the state in every case, subject to assessment of costs against a losing defendant-appellant.”Rogosheske, Justice (concurring specially).
I join in the special concurrence of Mr. Justice Todd.