Opinion
(Decided 2 May, 1899.)
Costs — Defendant's Witnesses — State Case — Acquittal.
1. The Code, secs. 733, 744, 747, and 748, collated and construed together, places it in the discretion of the presiding judge, for reasons satisfactory to him, to refuse to direct the fees of witnesses for the State or for an acquitted defendant, in whole or in part, to be paid by the county, and from his decision no appeal can be taken.
2. The State Constitution, Art. I, sec. 11, exempts an acquitted defendant from payment of necessary witness fees of the defense, but does not require that they shall be paid by the public.
INDICTMENT for murder, tried at Fall Term, 1898, of RUTHERFORD, before Starbuck, J., and a jury.
(836) Attorney-General for the State.
M. H. Justice, Matt McBrayer, E. J. Justice for defendants.
The defendant, Frank Hicks, was acquitted by the jury. No person was adjudged to pay the costs as prosecutor, nor was any person marked as prosecutor.
After the verdict of acquittal was returned by the jury, counsel for the defendant presented to the court a certificate, that the defendant, Frank Hicks, had witnesses duly subpoenaed, and that said witnesses were in attendance, and was necessary for the defense, and were sworn (830) and examined, and moved before the presiding judge for an order in the cause, directing that said witnesses be paid by the county in the same manner that the law authorizes the payment of State witnesses in like cases. The court refused to make the order.
The said counsel also moved the court to make the order in behalf of the witnesses, which the court refused to do, and the defendant and said witnesses excepted.
The court below found that the three witnesses named were necessary and material witnesses for the defendant duly subpoenaed and examined, but that "for reasons satisfactory to the court and in the exercise of the discretion in such cases vested in the presiding judge," he refused to order the witnesses paid by the county. From this order the defendant and the three witnesses named appealed.
The appellants contend that The Code, sec. 747, prescribes that the judge "shall" direct that the county shall pay the witnesses of an acquitted defendant (unless taxed against the prosecutor), but this must be taken in connection with the last two lines of said section (747), "in such manner and to such extent as is authorized by law for payment of State's witnesses in like cases," and as to State's witnesses, the sections 733, 744, place it in the discretion of the presiding judge, for reasons satisfactory to him, to refuse to direct the fees of the State's witnesses in whole or in part to be paid by the county.
In S. v. Massey, 104 N.C. 877, the history of the taxation of witnesses' fees is fully discussed, with statements of the reasons why it is left so largely to the discretion of the presiding judge. It is therein said: "As to the necessary witnesses (of defendants who are acquitted) the constitutional provision (Article I, sec. 11) does not require that they shall be paid by the public, but merely deprives them of their common law right to look to the defendant for payment, and places them, except when there is some legislative enactment, upon the footing all State's witnesses formerly held, and some still hold, of serving without compensation." It is necessary that some one be charged with the duty of protecting the public from the imposition of paying witness fees in excess of what is just and reasonable. The judge who tries the case can discharge that duty better than any one else, and, the statute having expressly (838) vested it in his discretion upon satisfactory reasons appearing to him (Code, secs. 733, 744, 748), no appeal can be taken. S. v. Massey, supra, which has been cited and approved in many cases, among others in re Smith, 105 N.C. at p. 170; Merrimon v. Comrs., 106 N.C. at p. 372; S. v. Horne, 119 N.C. 853; Guilford v. Comrs., 120 N.C. 23; Clerk's Office v. Comrs., 121 N.C. at p. 30; and by Faircloth, C. J., in S. v. Ray, 122 N.C. 1095, in which last the findings of fact are almost identical with those in the present case.
There are many other instances in which the action of the judge below is a matter of discretion and not reviewable, as setting aside or refusing to set aside a verdict because excessive or against the weight of the evidence, granting or refusing amendments, continuances, and in other matters fully as important the questions of allowing witness fees.
AFFIRMED.
DOUGLAS, J., dissents.
Cited: S. v. Wheeler, 141 N.C. 777; S. v. Pasley, 180 N.C. 696.
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