¶1delivered the opinion of the court.
¶2The question in this case is, what shall be the fee ■to be taxed in favor of the district attorney. The court below allowed the sum of twenty dollars, as oh a conviction for (rape.
¶3The party had been convicted, and appealed to this ■court from the judgment, but pending his appeal he broke jail and escaped; a capias was issued, properly returned, and the case ordered to be retired from the docket, as provided by our statute.
¶4By the act of 1879, p. 117, sec. 4542 of the Code waá so amended as that the fees of district attorneys for each conviction shall read, “ for each final conviction, and hereafter said fees shall not be allowed when a new trial is granted, by either the court below or the supreme court.”
¶5This case is not within the letter, but is within the spirit of this enactment. There was no final con*36viction in the sense of the law. The appeal vacated or suspended the judgment till the action of the court should be had on it; and so it stands as a case still pending against the defendant, and may be prosecuted against him whenever he may be arrested.
¶6The fee to be allowed is the one provided by the section of the Code directing the retirement of cases, that is, the fee allowed in cases of nolle prosequi or acquittal. The fee of twenty dollars will be stricken out.