State v. Krueger

This is an appeal'from a judgment taxing certain costs against the defendant, though the state dismissed the indictments after the cost had been incurred. In January, 1895, three indictments w’ere found against the defendant for violation of the election laws. The cause was continued to the April term, and during that time the defendant gave notice and took the depositions of certain witnesses. On the- application of the prosecuting attorney the court appointed a special commissioner to take the depositions. The parties procured and took the testimony of a number of witnesses, the majority, if not all, of whom were the same as those named on the indictments as witnesses for the state. Following the taking of these depositions the state dismissed the case; and the court, at the suggestion of the prosecuting attorney, adjudged the costs of taking these depositions against defendant, and he appealed.

*33Criminal Law: costs: deposition. *32I know of no law that will sustain the court’s action. The defendant had the legal right to take depositions to be used conditionally at the trial against him. Secs. 4147, 4149, R. S. 1889. If, however, the state should *33thereafter abandon the prosecution and dismiss the case, then the defendant was entitled, not only to a judgment of discharge, but as well a judgment for his costs lawfully incurred in preparing for his defense. This matter of costs is one of statutory regulation, and I know of no statute provision for taxing the costs against the defendant in a criminal prosecution- except where he is convicted. Sec. 4395, R. S. 1889. If the defendant should manifestly abuse this provision for his benefit, and should take depositions foreign to the issues involved, and which could not in any event be used, then the court might well deny his right to recover the same. But there is nothing in this record to show any such abuse. The mere fact that defendant took the depositions of witnesses named on the state’s indictment; or that such witnesses then resided and were found within the reach of subpoenas from the court, do not establish such abuse. It may be that the testimony of such witnesses was material for the defense, though relied on by the state; and that though they were at the time within reach of the court’s process, yet they might have been beyond it when the cause was called for trial. In view of this contingency, the defendant would be justified in taking the depositions of such witnesses to be used conditionally as the statute before cited has provided.

Criminal Procedure: discharge: appeal. There was a final judgment discharging the defendant; and hence the objection that an appeal will not lie from a mere order taxing costs, as suggested in the brief of the state’s attorney, is not well taken. The judgment of

the criminal court, in so far as it taxes the costs attending the taking of the depositions in question, will be reversed.