In the original opinion all costs incurred in this cause were taxed against relator. He has filed a motion, asking that the costs be retaxed, insisting there is no authority in law to tax any costs against him in this cause. In this contention we do not think he is correct. Article 210 of the Code of Criminal Procedure provides: "The court or judge trying the cause under habeas corpus may make such order as is deemed advisable or right concerning the cost of bringing the defendant before him, and all other costs of the proceeding, *Page 106 awarding the same either against the person to whom the writ was directed, the person seeking relief, or may award no costs at all."
It is thus seen that, under this article of the Code, this court is given authority to tax the costs incurred either against the person having relator in custody, or against the relator. As the officer against whom the writ was directed had done no more than the law required him to do, arrest relator on a warrant issued by the proper authorities and placed in his hands, we are of the opinion no costs should be taxed against such officer.
By the affidavits on file it is made to appear that, before this cause was called for trial, Mr. Puckett, of counsel for the State, approached counsel for relator and asked him if they would agree to pay one-half of the expense of a court stenographer. This counsel for relator declined to agree to Subsequent to this, Mr. Puckett approached counsel for relator and said he had made arrangements for payment of a stenographer. Under such circumstances we are of the opinion that such costs should not be taxed against relator, as this court had stenographers employed who could and would have reported such of the testimony as this court deemed essential to a proper disposition of the case. It is, therefore ordered that so much of the order taxing the fees of the stenographer against relator be and the same is hereby set aside, and it is ordered that such fees be, and they are, hereby taxed against no party to the same. And, inasmuch as it is apparent from the proceedings that in suing out the application for a writ of habeas corpus, relator acted from a belief that the law was unconstitutional, and, therefore, subject to no improper motive in so doing, it is ordered that so much of the order taxing the fees of the clerk of this court and the Attorney General's fees be, and the same is, hereby set aside, and it is ordered that the fees of the clerk of this court and the Attorney General be taxed against no party to the suit.
However, as the suing out of the writ rendered it necessary that the other costs be incurred, — that is, the witness fees and the sheriff's fees for summoning the witnesses, and no act of the officer having relator in charge occasioned such costs, but same were brought about by relator suing out the writ, it is the opinion of the court that the fees of the various sheriffs in summoning the witnesses and the fees of the witnesses for attending court in obedience to such process, as proven up, should be charged to relator. It is proper that such fees be paid to the witnesses and sheriffs, and the court, under the law, must exercise its discretion as to whether the officer against whom the writ was directed or relator should pay same; and, after consideration, we have arrived at the conclusion that no just reason exists why same should be taxed against the officer arresting appellant under a valid warrant of arrest, and that as said fees were occasioned by the suing out of the writ, it is ordered, adjudged and decreed by the court that the fees of the various sheriffs accruing by reason of summoning witnesses in this cause, and the fees of the various witnesses attending court in obedience *Page 107 to such process, be, and the same are, hereby taxed against relator, and unless same are paid to the clerk of this court within ten days from the date of this order, that execution issue for said costs so taxed against relator.
[This case did not reach the hands of the reporter until November, 1917. — Reporter.]