PART VII.

Of the costs in criminal actions and proceedings.

SECTION 1039. Former fees abolished, and provisions of this code substituted.

1040. Magistrate's fees.

1041. Clerk's fees.

1042. Peace officer's fees.

1043. Sheriff's fees.

1044. Fees, how chargeable.

The rate of fees in this part, instead of being regulated in reference to each particular service rendered, is, in conformity with the fee bill in the code of civil procedure, based upon a fair equivalent in each consecutive stage of the proceedings. The inducement which the present fee bill in crin.inal cases, 2 R. S., 3d ed. 835 - 841, sec. 1-23, holds out, to swell the costs, by crowding into the case as many services as possible, whether necessary or not, is thus taken away. The particular allowances proposed in this part, have been carefully considered, and are deemed just.

§ 1039. All statutes, establishing or regulating the costs or fees of public officers, in criminal actions or proceedings, are repealed; and hereafter, the only costs or fees allowed in a criminal action or proceeding, are those provided by this code.

§ 1040. The magistrate, if he be a justice of the peace, or a police justice, appointed or elected in a city, village or town, may receive,

For all the proceedings before him, to and including the commitment or discharge of the defendant or holding him to answer, two dollars.

For all proceedings (including the trial, judgment, and commitment,) had before him, while holding a police court, two dollars, or conducting a special proceeding.

For taking bail, after a commitment by another magistrate, one dollar.

§ 1041. The clerk may receive,

On the trial of an issue, one dollar.

On entering judgment, fi'ty cents.

He can receive no other fee, for any service whatever, in a criminal action or proceeding, except for copies of papers delivered to a person at his request, at the rate of five cents for every hundred words.

§ 1042. The peace-officer may receive,

For making an arrest fifty cents, together with five cents for every mile necessarily travelled by him, in rendering the service, and in taking the defendant before a court or magistrate, or carrying him to prison.

For serving a subpoena, fifteen cents, together with five cents for every mile necessarily travelled by him, in rendering the service.

The board of supervisors may allow any further compensation, for the service of process, and for other services in criminal cases, which they may think reasonable.

§ 1013. The sheriff may receive,

For summoning a grand jury, ten dollars.

For summoning a trial jury, ten dollars.

For carrying a single convict to the state prison, for every mile necessarily travelled from the county prison, forty cents; two convicts, sixty-five cents; more than two and not exceeding four convicts, seventy cents; five convicts, seventy-five cents; for every additional convict, such reasonable allowance as the comptroller may think just. He may also receive, for the maintenance of the convict on his way to the state prison, such sum as he may actually expend for it, not exceeding one dollar for every thirty miles travelled.

§ 1044. The fees allowed by the last four sections, are county charges, and must be audited and paid by the board of supervisors of the county in which the services we: e rendered; except, that the fees of the sheriff for conveying convicts to the state prison, must be paid by the agent of the prison to which the convicts are carried, and by him charged in his accounts with the state.

GENERAL PROVISIONS AND DEFINITIONS APPLICABLE TO THIS CODE.

SECTION 1045. Rule of construction of this code.

1046. No part of this code retroactive, unless expressly so declared. Masculine includes feminine and 1047. Present tense includes future.

neuter. Singular includes the plural, and the plural the singular. Person includes corporation.

1048. Definition of "writing."
1049. Definition of " oath."

1050. Definition of "signature."
1051. Definition of "magistrate."

1052. Definition of "peace officer."

1053. To what actions and proceedings this code applies.

1054. This code to take effect July 1, 1850.

§ 1045. The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. This code establishes the law of this state, respecting the subjects to which it relates; and its provisions, and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.

This section declares the same principle in reference to penal statutes, as is declared in the code of civil procedure respecting statutes in derogation of, or variant from, the common law.

The rule applicable to penal statutes, is well settled to be, that they are to be strictly construed; Sprague v. Birdsall, 2 Cowen, 419; that they, as well as statutes in derogation of the common law, are not to be extended beyond their express words, or their clear import; Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, 4 Hill, 92; Bennett v. Ward, 3 Caines, 259; Hallett v. Novion, 14 Johns., 273; and that it is not open to an equitable construction. Myers v. Foster, 6 Cowen, 567. This rule differs from that applicable to ordinary statutes, which is, that they are to be so construed as to give effect to the will of the legislature, as either expressed in the language of the statute itself, or as deducible from the fair and reasonable import of its terms, its object, the evil to be remedied, and the circumstances under which it was passed.

If any reason were wanting, to show the inutility, not to say absurdity of this distinction, it is to be found in the refinements and subtleties to which it has led, and of which some idea may be formed, from the specimens already given, in the remarks of the Commissioners on the existing rules of pleading. See p. 144, 145.

This section is proposed, for the purpose of abrogating a distinction which has in it no principle of substantial justice, and whose highest aim, practically considered, seems to be, to render the law inconsistent with its spirit, and as a consequence, absurd and ridiculous.

§ 1046. No part of this code is retroactive, unless expressly so declared.

§ 1047. Unless when otherwise provided, words used in this code in the present tense, include the future as well as the present. Words used in the masculine gender comprehend as well the feminine and neuter. The singular number includes the plural, and the plural the singular. And the word person includes a corporation, as well as a natural person.

§ 1048. The term "writing" includes printing.

§ 1049. The term "oath," includes an affirmation.

§ 1050. The term "signature," includes a mark, when the person cannot write; his name being written near it, and the mark being witnessed by a person who writes his own name as a witness, except to an affidavit or deposition, or a paper executed before a judicial officer; in which case the attestation of the officer is sufficient.