State v. Bartlett

7 Ind. 665

• Court: Indiana Supreme Court
• Decided: June 17, 1856
• Status: Published

Opinion

Perkins, J.

Elzy and Boaz Bartlett were jointly indicted, in a single count, for an assault and battery with intent to murder. Elzy, without process, entered into a recognizance for his appearance; but Boaz did not do so, because, as counsel stated, he was sick. A writ was issued for Boaz, in vacation, but was not served. Witnesses were subpcenaed in the cause for the first day of the next term. On the first day of that term, Elzy and Boaz appeared, and by their counsel Informed the Court that they would be ready for trial the next day. On the fifth day the defendants appeared and elected to be tried separately, Elzy first. On the eighth day Elzy was acquitted, and Boaz recognized to appear from day to day. On the ninth day he was tried and convicted, and the Court taxed against him but the costs of a single day, whereas the state claimed that he was liable for costs from the first day of the term. The proper motions as to taxation were made, and exceptions taken. The motions were made on behalf of the officers. We think Boaz was liable for the fees of witnesses, &c., from the first day of the term. He appeared and claimed his trial at that time, and from hence was in Court. The state was bound to keep herself in readiness for trial. We see nothing that entitles him to claim exemption from costs, any more than he would have been had he come into Court under a writ.

A. J. Neff and W. March, for the state. T. S. Buckles, for the appellee.

Per Curiam.

The taxation of costs is reversed, with instructions to the Circuit Court to retax the costs as indicated in this opinion.