State v. Sellars. Appeal from the Circuit Court of Fayette County.— HON. JOHN A. TIPTON, Special Judge. W. H. SWIGGART, JR., Assistant Attorney-General, for the State. W. M. MAYO and SIMONTON & GWINN, for defendant in error. MR. JUSTICE MCKINNEY delivered the opinion of the Court. The defendant, Fred Sellars, was indicted and convicted in the circuit court of Fayette county of petit larceny; the jury in their verdict commuting his punishment to imprisonment in the county jail for a period of thirty days. Upon said verdict the circuit judge sentenced the defendant to the "county jail" for a period of thirty days, and the defendant served his sentence as adjudged by said court. The costs of the case were adjudged against the State. A motion was made to retax the costs, it being insisted by the State that same should be adjudged against the county, but this motion was overruled, and the State has appealed and assigned this action of the trial court as error. Fayette county has a combined jail and workhouse, as defined in Davidson v. Gibson County, 134 Tenn., 526, 184 S. W. 29, and it is insisted by the State that, upon the authority of the case just mentioned, the circuit court State v. Sellars. was without power or discretion to sentence the defendant to the jail instead of to the workhouse, and that a sentence to jail, under such a conviction, had the effect of a sentence to the workhouse, by operation of law. It is insisted by the county that the workhouse system in Fayette county had been abolished prior to the conviction in this case, but, under our view of the case, we find it unnecessary to pass upon this question, and so, in a consideration of the case, we do so upon the assumption that the jail is still a workhouse, having been so declared by the quarterly county court of Fayette county in 1909, in conformity with the general workhouse statute (chapter 123 of the Acts of 1891). Chapter 22 of the Acts of the Extra Session of 1891 defines what costs in criminal cases shall be borne by the State and what by the county. The caption and first three sections of said act are as follows: "An act to amend sections 5586 and 5587 of the Code of 1858, relating to the payment of costs in criminal cases, and to more clearly define what cost in criminal cases the State and county shall be held liable. "Section 1. Be it enacted by the General Assembly of the State of Tennessee, that section 5586 of the Code of 1858, be so amended as to read as follows: The costs which have accrued in any criminal prosecution for offenses punishable with death or by confinement in the penitentiary in cases accruing under subsections 1, 3, and 5 of the foregoing section, shall be paid by the State. 143 Tenn.-3 State v. Sellars. "Sec. 2. Be it further enacted, that section 5587 be so amended as to read as follows: Similar costs in criminal prosecutions for offenses punishable in any other way than by death or confinement in the penitentiary, also similar costs in criminal prosecution for offenses punishable with death or confinement in the penitentiary in cases accruing under subsections 2 and 4 of section 5585, shall be paid by the county. "Sec. 3. Be it further enacted, that what is meant by costs in the foregoing sections is all costs accruing under existing laws on behalf of the State or county, as the case may be, for the faithful prosecutions and safe-keeping of the defendant, including the cost of boarding juries and that of the jailer; but nothing in this act shall be so construed as to require the State to pay any cost for guarding the jail to prevent mob violence, or to prevent rescue or the prisoner's escape, or for transporting to any other county for safe-keeping on any account whatever; but the same shall be paid by the county in which the crime was committed, or claimed to have been committed." In construing said act, in connection with section 7606 of Shannon's Code, this court, in the case of Woolen v. State, 129 Tenn., 455, 166 S. W., 594, used this language: "By the last-named act, the test of liability, as between the State and the county, is placed on the grade of the offense. All costs of the prosecution of crimes punishable otherwise than by death or confinement in the penitentiary are made payable by the county. State v. Sellars. "We are of opinion, and hold, that in cases of felonies, where the punishment has been commuted from confinement in the penitentiary to confinement in a county workhouse or jail, there is worked by the commutation no change in the grade of the offense, so as to disturb the above test of liability for costs. They are payable by the State, except where the statute provides to the contrary." In Davidson v. Gibson County, supra, this court said: "Clearly, where there is only a jail proper, as described under head (3) above, the State is not freed from and the county onerated with the board, accruing after conviction, of State's prisoners. All prisoners convicted of felonies are clearly State's prisoners notwithstanding commutation to jail sentences. Code (Shannon) sections 76197622; State v. Davidson County, 96 Tenn., 175, 180, 33 S. W., 924; Woolen v. State ex rel., supra. The principles of the last-named case are then applicable. "When it comes to a combination jail and workhouse, (2) above, it is equally manifest that the decision in the Woolen Case is apt and correct as applied to those who are held 'in jail' by the sheriff as 'jailer.'" It should be borne in mind that the defendant in the present case was sentenced to the county jail, and not to the county workhouse. Section 5413 of the Code of 1858 (section 7393 of Shannon's Code) provides: "In all cases where a person is by law liable to be imprisoned in the county jail, for safe-keeping or punishment, State v. Sellars. confinement in the workhouse, if one be provided, may, in the discretion of the court or justice, be substituted." It is insisted on behalf of the State that this latter section was repealed by implication by chapter 105 of the Acts of 1881, which act is as follows: "An act to compel persons confined in the county jail for felonies, when the punishment has, by the jury, been commuted to imprisonment in the jail, to work in the workhouse during their term of imprisonment. "Section 1. Be it enacted by the General Assembly of the State of Tennessee, that hereafter all persons charged with a felony and convicted of the same, but whose imprisonment has been by the jury commuted to imprisonment in the county jail, shall hereafter be compelled to work out said terms of imprisonment at hard labor in the county workhouse in the county where convicted. "Sec. 2. Be it further enacted, that this act shall take effect from and after its passage, public welfare requiring it." We are unable to assent to this insistence made by the State. It is the duty of the court to give effect to both acts, if possible, and it is only where the two acts cannot be harmonized that the courts will adjudge the former repealed, by implication, by the latter. Durham v. State, 89 Tenn., 728, 18 S. W. 74. Chapter 105 of the Acts of 1881 does not relate to the question of where the convicted prisoner shall be sentenced, |