State v. Huiatt

Philips, P. J.

In May, 1881, William A. Gardner filed with the clerk of the Holt circuit court an affidavit, charging that Daniel ‘ Huiatt et dl., justices of. the county court of that county, had unlawfully and corruptly granted and issued to one Kyger a dram-shop license, without the necessary petition therefor. On this affidavit the prosecuting attorney of the county filed an information against said justices for such offence. On trial defendants were acquitted; and the circuit, court has since assessed the costs of this prosecution, against said Gardner as the prosecutor, and rendered, judgment accordingly.

The single question presented by this record, necessary to be decided, is, whether or not Gardner, by making such affidavit, became liable for the costs of the prosecution in the event of the acquittal of the accused.

It seems to be conceded by respondent that the authority for the action of the court is based upon section 1768, Revised Statutes, which declares that: “ When the information is based on an affidavit filed with the clerk, or delivered to the prosecuting attorney, etc., the person who made such affidavit shall be deemed the prosecuting witness, and in all cases in which, by law, an indictment is required to be indorsed by a prosecutor, the person who makes' the affidavit upon which the information is based, or who verifies the information, shall be deemed the prosecutor ; and in case the prosecution shall fail from any cause, or the defendant shall be acquitted, such prosecuting witness shall be liable for the costs in the case, not otherwise adjudged by the court; but the prosecuting attorney shall not be liable for costs in any case.”

It is to be observed and kept in mind that while this section makes the prosecuting witness liable for the costs in the event of an acquittal, it is only in cases in “which, by law, an indictment is required to be indorsed by a prosecutor.” The instance in which an indictment is required to be indorsed with the name of the prosecutor is section 1800, Revised Statutes, which declares that an indictment for any trespass against the person or property of another, not amounting to a felony, except for petit larceny, shall be indorsed with the name of the prosecutor. The prosecution in question not being for any trespass against the person or property of the informer Gardner, had it been instituted by indictment, the name of the prosecutor would not have been required to be indorsed on it. As the above section is the only instance in which the name of the informer is required to be indorsed, applicable to this case, we fail to find any warrant for the action of the circuit court in assessing the costs against Gardner.

Section 2095, Revised Statutes, which prescribes that every person who shall institute any prosecution to recover a fine, penalty, or forfeiture, shall be adjudged to pay costs, if the defendant be acquitted, etc., has no application to this case. State v. Lavelle, 88 Mo. 104. It has been held directly that an indictment against an officer, such as a justice of the peace and constable, for an offence in the administration of justice, need not be indorsed with the name of a prosecutor. State v. Dickerson, 24 Mo. 368; State v. Allen, 22 Mo. 318. The character of the offence charged in this case against such important judicial officers as justices of the county court, in the administration of justice, so much concerns the public welfare that it is to be presumed, when the prosecuting attorney for the county lends his name to the prosecution by information, the legislature did not intend to lay the burden upon the informer of paying the costs in case of failure of prosecution. Anri as the informer, presumably, would be actuated in such instance only by a sense of duty to the public welfare, the policy of the law in making him responsible for the costs, as in the case of a personal grievance, does not ■exist.

The other judges concurring,

the judgment of the circuit court is reversed.