I. The amount in controversy being less than one hundred dollars, the Circuit Court has certified to us the following question for determination.

1. COSTS: in criminal before justice. “ Where a criminal prosecution is instituted in justice court, charging an offense triable before the justice, and a trial is had to a jury, who disagree, and at the time set for a further trial the case is dismissed by the justice for the reason that the prosecuting witness fails to appear and prosecute the defendant, can the justice legally tax the costs to the State of Iowa to be paid by the county?”

The rule is that the costs in criminal cases, where the prosecution fails, shall be paid by the county. Code, § § 3790, 3806, 3814. The exception, so far as applicable to criminal cases before justices of the peace, is, that “When the defendant, is acquitted, the justice shall, if he is satisfied that the prosecution is malicious or without probable cause, tax the cpsts against the prosecuting witness and render judgment therefor * * *.” Code, § 4691. There is nothing in the foregoing question which would seem to imply that there was an abuse of-the discretion of the justice of the peace in failing, to tax the costs to the prosecuting witness.

The fact .that the case had once been tried to a jury, that failed to agree, would rather imply that there was probable cause for the prosecution. Again, the record nowhere discloses that the failure of' the prosecuting witness to appear at the second trial was not for good and sufficient reason, such as sickness or the like. In the absence of an affirmative *133'showing of an abuse of discretion of the justice, we must presume that it was properly and not illegally exercised.

II. This disposition of the case upon its merits renders it unnecessary to determine the question whether the writ of certiorari should have issued from the District Court.

Aeeirhed.