The opinion of the court was delivered by

The claim sued on in this case was for the fees of witnesses for the state in a criminal prosecution in Barton county. C. H. Cason was charged with embezzling the sum of $1,000, and at a preliminary examination béfore a justice of the peace of that county was recognized to the district court to answer the charge, where he was tried at the September term, 1880, and convicted of embezzling $15, for which he was sentenced to pay a fine and the costs of prosecution. As the defendant in that prosecution was unable to pay the costs, the witnesses for the state seek to recover them from the county. It will be observed that the fees sued for were earned, and the conviction obtained in that case, long prior to the enactment of chapter 108 of the laws of 1881, which has repealed some of the provisions then existing respecting costs in criminal cases, and has created a liability against the county for such costs, which did not exist prior to the taking effect of that law. (Comm’rs of Labette Co. v. Keirsey, 28 Kas. 40.)

The defendant in error, plaintiff below, bases his right to recover upon § 325 of the criminal code, which provides that—

“The costs incurred on the part of the prosecution shall be paid by the county in which the offense is committed, when the defendant shall be convicted and shall be unable to pay them.”

This general provision, as has been decided, was limited by § 27 of chapter 83, Comp. Laws of 1879. The last-mentioned section was later legislation, and provided that no costs should be paid by the county in any case of misdemeanor of which a justice of the peace had jurisdiction, when the complainant or *288defendant shall be adjudged to pay them. (Comm’rs of Johnson Co. v. Wilson, 19 Kas. 485.)

Crrouíábieftr The claim of counsel for defendant in error, however, is that the case of the State of Kansas v. C. H. Cason was a prosecution for felony, and therefore did not come within the prohibition of the section last quoted. They say that the original complaint charged a felony; the justice of the peace bound over the accused, finding that there was probable cause for believing that felony had been committed; the county attorney filed an information charging a felony, and the defendant had a trial as for a felony; and that all these things give character to the case and entitle it to be classed as a case of felony. It will be seen that in this case the defendant was convicted of only a misdemeanor. The offense of which the accused is guilty is to be determined by the verdict and not by the charge. We think that so far as the question of liability for costs, under the statute as it then existed, is concerned, the case is to be classed, and its character determined, by the conviction. It was held in The State v. O’Kane that where an information charges an offense which includes both a misdemeanor and a felony, and the jury find the defendant guilty of a misdemeanor only, the defendant can only be required to pay costs as for a misdemeanor. (23 Kas. 244.) Upon the same question, see also The State v. Granville, 26 Kas. 158. No reason is seen for the application of a different rule where the liability is sought to be imposed upon the county in such a case; and within the principles announced in these decisions, we must hold that the county is not liable for the costs sued for.

The judgment of the district court will be reversed, and the cause remanded with instructions to sustain the demurrer filed in the court below by the plaintiff in error.