Although a person accused of an offense cannot be called upon to pay the costs of the state as part punishment, in advance of his conviction, yet it is competent for the court before which the case against him is pending, to require him to pay them as a condition of the continuance of his case, which he seeks, and which it is within the discretion of the court either to grant or refuse.
DURFEE, J.
We understand that the Court of Common Pleas, in effect, whatever may have been the form of its action, granted a continuance of the complaint against the relator, on his motion, on condition that he should pay the costs of the state for the term, and that, upon his refusal to pay them, the court had his recognizance called and defaulted. The relator contends, that, inasmuch as the statutes provide that the costs shall be a part of the sentence, thus making them a part of the punishment, he ought not to have been called upon to pay any portion of them before conviction. This argument would be valid if the relator had been called upon to pay the costs of the state, for the term, as part punishment, in advance of his conviction; but he was simply called upon to pay them as a condition of the continuance, for which he had asked, and which it was within the discretion of the court either to grant or refuse. The grant being made upon a condition to be performed by the relator, became a refusal on his declining to perform it. We think the Court of Common Pleas, in its action in the premises, did not exceed its powers; whether it exercised its discretion wisely or not, we do not feel called upon to inquire.
For this reason, without determining whether, in any view, a writ of certiorari would have been the proper remedy, — the question which was not argued, — we dismiss the application.
Application dismissed.