Biester v. State
| Decision Date | 01 July 1902 |
| Docket Number | 12,676 |
| Citation | 91 N.W. 416,65 Neb. 276 |
| Parties | HENRY BIESTER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR from the district court for Fillmore county. Tried below before STUBBS, J. Reversed.
REVERSED AND REMANDED.
F. B Donisthrope, for plaintiff in error.
Frank N. Prout, Attorney General, and Norris Brown, for the state.
In the district court of Fillmore county, Henry Biester was charged with a felonious assault and was tried and found guilty of an assault and battery. The court over-ruled a motion for a new trial and sentenced defendant to pay a fine of $ 50 and the costs of prosecution. The clerk of the court, acting on the suggestion of the trial judge, taxed against the state the fees and mileage of twenty-three witnesses, who had been subpoenaed by the state, but not called or examined at the trial. The aggregate amount of such fees and mileage is $ 192.70. The county attorney moved to retax these costs, and in support of the motion filed affidavits from which it appears that seven of the twenty-three witnesses were never intended to be used to prove the criminal act upon which the prosecution was grounded. They knew nothing about the alleged assault and could give no testimony tending in any degree to establish the commission of a misdemeanor. They were subpoenaed only for the purpose of rebutting any evidence that might be adduced to show that the protracted illness of Henry Nachbor, the prosecuting witness, was due in part to bad nursing. The sixteen other witnesses constituted the state's reserve. They did not testify because the emergency in which they would be available did not arise. They were intended to be used for the purpose of meeting evidence which there was reason to suppose the defendant would offer to prove his general good character. Acting, it would seem, on the assumption that all costs made by the state, whether necessary or unnecessary, reasonable or unreasonable, should be taxed against the defendant, the trial court sustained the motion.
We can not approve the decision nor the principle upon which it is based. The fees and mileage of the seven witnesses subpoenaed for the purpose of proving that the assault was felonious should not have been charged against the defendant, for upon that issue the state failed. There is, it seems to us neither reason nor justice in imposing on a person who has committed a misdemeanor the expense incurred by the state in a futile effort to convict him of a felony. The costs of prosecution contemplated by the statute are in our judgment, the costs incurred in establishing guilt, in proving a specific charge, not those made in connection with a false accusation--a charge that is disproved and shown to be groundless. If the seven witnesses had been actually called and sworn they could have given no testimony relevant to the issue resolved in favor of the state; they could have contributed nothing whatever to the result of the trial. The expense incurred in bringing them to court was unnecessarily incurred; it was, according to the verdict, which is a legal verity, incurred in attempting to...
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