State ex rel. Nealis v. Nolan.

The cases of

State, its treasury, funds or property. Akers and Union Publishing Co. v. Burch, comptroller, 12 Heis., 613, and State, etc., ex rel. Marchbanks v. Gaines, MS., Nashville, Feb., 1880, sustain the right of a party having a claim, to compel the comptroller to audit it, and issue his warrant, if properly presented and authenticated, whether there was any appropriation or funds in the treasury to meet it or not. Besides, the question is not presented by motion, plea, or demurrer of the law officer of the State or counsel employed for the State, as required by the act of 1873, sec. 2. On the state of facts we have given, several questions present themselves for our decision. It is evi

dent this claim is a stale one, and comes stamped with more or less suspicion as to its correctness. Persons do not often, if ever, allow such claims to go from ten to fourteen years, before having them put in shape for presentation to the comptroller for a warrant, and to the treasurer for payment.

We take it, the first and main question is as to the validity and effect of the judgment rendered in 1876, by the criminal court of Shelby county. Is this valid and effectual as a judgment? This is not a motion to re-tax costs omitted in taxing the bill of costs under sec. 3211 of the Code, and does not purport to be such. On its face it shows that it is not the original judgment authorized to be rendered against the State, as the result of the trial of a party accused of felony, where the State may be adjudged to pay the costs. On the contrary, it shows that a judgment for costs had been theretofore rendered in each case, and

State ex rel. Nealis v. Nolan.

Prima facie,

the State adjudged liable for the costs. the costs were then taxed, and taxed properly, and we may add, there is a strong presumption or inference, paid. By sec. 5577 of the Code, the costs which may be adjudged in criminal cases include all costs incident to the arrest and safe-keeping of the defendant before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence of the court into effect.

The cost of keeping or boarding a jury, it seems to us, was necessarily included in and came under that clause. The judgment was thus rendered for costs, and all costs properly due under secs. 5581 and 5581 a, and 5585 et seq. of the Code.

It then became the duty of the clerk to make out what is known as the bill of costs, which shall "show the specific items, and be examined, entered of record, and certified to be correct by the court or judge before whom the cause is tried or disposed of, and also by the district attorney:" Sec. 5569, act of 1832.

Section 5570: A copy of the judgment and bill of costs, certified by the clerk of the court and by the attorney-general and judge, as provided in the preceding section, shall be presented to the comptroller, chairman of county court, etc., whereupon a warrant shall issue for the amount," etc.

The bill of cost itemized, after examination, to be entered of record, is not, by sec. 5569, to be made the basis of a judgment, nor is any required or thorized to be rendered by that section.

au

The judg

State ex rel. Nealis v. Nolan.

ment referred to in the succeeding section is evidently the original judgment against the State. The reference to the preceding section, are to the certificates required, and form of authentication.

Section 5578 has no reference to this case, and cannot aid relator. It simply provides: "The judgment for costs may be rendered at the time of conviction, or upon motion, at any subsequent term thereto, and execution awarded accordingly."

This evidently refers to judgment against a party against whom execution is to issue, and not to a bill of costs on judgment already rendered against the State.

It follows, that the so called judgment of 1876, rendered against the State, is unauthorized, and has no effect whatever as a judgment. Such a judgment against the State-that is, a judgment for costs-is purely statutory. It is also clear from this view, that the proper statutory evidence was not presented to the comptroller, on which he was required to issue the warrant in such cases.

In view of the lapse of time, and suspicions that necessarily attach to this claim under the circumstances, we feel no inclination to extend any liberal construction to our statutes in favor of it. On the contrary, to protect the treasury from fraudulent claims. of like kind, it is our duty to require the letter of the law to be observed in all such cases, or hold them not sustainable.

The result is, that for different reasons, we think the judgment of the circuit judge correct, and the costs.

same is affirmed with

Crowder . The State.

RICHARD CROWDER V. THE STATE.

CRIMINAL LAW. Self-defense. The trial judge in his charge, after saying to the jury, that "the son has the right to fight for the father and the father for the son, under the rules that one has a right to fight in his own detense," adds: "If the father is in fault in bringing on the conflict, then the son cannot lawfully fight in his defense until the father has declined to fight, or offered to decline it, and this is true if both parties are in fault in bringing it on, and both fight willingly." The charge would have been more strictly accurate if it had been qualified to this effect: If the father was in fault by beginning the combat, before the son could be excused in stabbing in defense of the father, it should appear that the latter had abandoned or offered to abandon, the combat, provided the fierceness of his adversay permit, or he have time to do so.

FROM WHITE.

Appeal in error from the Circuit Court of White county. N. W. McCONNELL, J.

GARDENHIRE, SWAFFORD & MURRAY and JORDAN STOKES & SON for Crowder.

ATTORNEY-GENERAL LEA for the State.

MCFARLAND, J., delivered the opinion of the court.

The defendant, with his father John A. Crowder, were jointly indicted for maliciously stabbing the prosecutor, John W. Knowles.

John A. Crowder was first tried and acquitted. Afterwards the defendant was tried and convicted, and sentenced to two years' imprisonment in the peniten

Crowder v. The State.

tiary. His motion for a new trial being refused, he has appealed.

The prosecutor and John A. Crowder owned and occupied adjoining farms, with a pass-way between, which the prosecutor claimed as a private way. Said John A. Crowder proposed to set out bis fence so as to interfere with the road, and he and the defendant were engaged in this work when the difficulty occurred. Only the prosecutor, the defendant, John A. Crowder and one other person were present at the

affray the latter witness saw only part of it.

The prosecutor's testimony, in substance, is that hearing that the Crowders were setting out the fence, he went to them to see if he could not see if he could not compromise

the dispute. After meeting the parties and some controversy had between them, John A. Crowder said he was going to move his fence out. Prosecutor told him if he did he would throw it down. John A. Crowder then threatened to strike prosecutor with a large stick, and upon the prosecutor telling him to strike, he did strike, when prosecutor caught the stick and jerked it out of said Crowder's hand, and then struck him (Crowder) with his fist, either knocking him down or causing him to fall, when the defendant, who had been sitting near by with a knife in his hands, ran up and stabbed the prosecutor twice from behind. The prosecutor then attempted to get away, but a further conflict was kept up between himself on the one side and the Crowders on the other, in which the prosecutor received three other stabs from the defendant, part of which were very severe and dangerous.