Commonwealth v. Mitchell

<p>Appeal, No. 1, March T., 1907, by plaintiff, from order of Q. S. Lycoming Co., Dec. T., 1906, No. 67, sustaining exceptions to taxation of costs in case of Commonwealth v. Robert Mitchell.</p> <p>Exceptions to taxation of costs.</p> <p>Hart, P. J., filed the following opinion :</p> <p>The questions here raised come before us on an appeal from the taxation of costs by the clerk of this court.</p> <p>We do not agree with the contention of the county solicitor, that a defendant is bound by bill of witness’ costs as certified by the district attorney, and that he is precluded from questioning the correctness of the same after the county has paid, the witness’ costs thus certified, in the absence of evidence that the defendant had a knowledge of the amount thereof or waived objections thereto before the same was paid by the county.</p> <p>The defendant in this case was sentenced to imprisonment in the county jail for a period of six months, and to pay a fine and the costs of prosecution, and was, as usual in such cases, immediately upon being sentenced, conducted by the sheriff to the county jail, and, therefore, had no opportunity of examining the bill of costs after sentence was pronounced.</p> <p>The costs when paid by a defendant ai*e usually, if not universally, paid at the end of the term of imprisonment, and then usually is the first opportunity a prisoner has of learning the amount of costs he is expected to pay.</p> <p>To sajq therefore, that a prisoner cannot, at his first opportunity, dispute a bill of costs which he is required to pay in order to secure his discharge from, imprisonment, would, it séems to us, be too manifestly unjust to be tolerated in a court of justice; and, whilst the certificate of the district attorney was a justification to" the county to pay the costs of .the witnesses, yet where manifest error is shown, this certificate cannot preclude inquiry into its correctness when otherwise manifest injustice and wrong would result to a defendant who has not had his opportunity to examine into its correctness until he is called upon to pay the same.</p> <p>We find from the facts as found by the cleric of court, George Gates, a witness, is credited with five days’ attendance at court at $1.00 per day, and was paid $5.00, when in fact he was in attendance but one day and is entitled to but $1.00.</p> <p>That H. C. 'Kellenbach, a witness, is credited, and was paid $5.00 for five days’ attendance at court, when he was in fact in attendance but four days and entitled to but $4.00.</p> <p>That George Steigleman, a witness, is credited with being in attendance at court six days and was paid $6.50, when in fact he was in attendance but three days and entitled to but $3.50;</p> <p>That Clarence Zechman, a witness, is credited with six days’ attendance at court and was paid $6.50, when he was in fact in attendance but three days and entitled to but $3.50.</p> <p>That Curt Weigand, a witness, is credited with being in attendance three days, and with 424 miles travel, and was paid $15.72, when in fact this witness was not in attendance at all and had been excused from attendance and was entitled to no part of said $15.72.</p> <p>This makes in all the sum of $26.72 paid for witness’ fees and mileage wholly unauthorized by law so far as this defendant is concerned. '</p> <p>We sustain tlie exceptions to the taxation of costs so far as the items above referred to are concerned, and direct that the same be deducted from the commonwealth’s bill of costs, as affecting the defendant, and that he be allowed a credit to that amount on the judgment entered against him.</p> <p>The other exceptions to the taxation of such costs are overruled.</p> <p>Error assigned was in sustaining exceptions to adjudication.</p>