The State, Respondent, vs. Hoffman, Appellant, 18 Mo. 329

RylaND, Judge, delivered the opinion of the court. In this case, the defendant, Hoffman, had been arrested on a warrant from a justice of the peace, and had been required to enter into a recognizance to keep the peace, and to appear before the Criminal Court. He entered into the recognizance as ordered, and made his appearance before the Criminal Court, where he moved the court to be discharged, which motion was overruled.

The court then heard the case and ordered the defendant to paj the costs of the prosecution and stand committed until costs were paid, but did not order him to enter into a recognizance to keep the peace any further. The defendant excepted to the judgment of the court requiring him to pay the costs and stand committed until the same were paid, and appealed to this court. 1. The eleventh

section of

article one, of the act regulating Practice and Proceedings in Criminal Cases, R. C. 1845, in proceedings like the present, gives power to the court to adjudge the costs according to its discretion. Here there was a trial, and the court, after hearing the matter, adjudged that Hoffman pay the costs. This is not like the case of the State v. Fawcett, decided by this court at the March term, 1852. In that case, the person making the complaint failed to appear and prosecute. The court discharged Fawcett but made him pay the costs. This court reversed this judgment. The tenth

section of the act above cited declares, that when any person shall have been bound to keep the peace on the complaint of another, and the complainant shall not appear, the party recognized shall be discharged, unless good cause to the contrary be shown. (See opinion in the case of the State v. Fawcett, 16 Mo. Rep. 380.) The discretionary power, under the eleventh section, authorizes the court to adjudge the costs against either party, according to the circumstances, and this discretion will not be interfered with.

Under the tenth section, when a discharge is ordered because the complaining party will not prosecute, it is nothing but right to make such party pay for his groundless charge. The judgment of the court below is affirmed, the other judges concurring.