Cameron v. State

• Decision Date: 23 February 1906
• Docket Number: 6,050
• Citation: 76 N.E. 1021,37 Ind.App. 381
• Parties: CAMERON v. THE STATE
• Court: Indiana Appellate Court

76 N.E. 1021

37 Ind.App. 381

CAMERON v. THE STATE

No. 6,050

Court of Appeals of Indiana

February 23, 1906

From Steuben Circuit Court; Charles E. Emanuel, Special Judge.

Prosecution by the State of Indiana against Robert Cameron. From a judgment of conviction, defendant appeals.

Affirmed.

Brown & Carlin and Woodhull & Yeagley, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild W. C. Geake and Best & Yotter, for the State.

OPINION

ROBINSON, J.

Appellant was indicted for selling liquor without a license. On February 23, 1905, he was arraigned and entered a plea of not guilty, and the case was then set for trial on March 1, 1905. On that date he entered a plea of guilty and was fined $ 30 and adjudged to pay the costs. Afterward appellant filed a motion to retax certain witness fees as costs, on the ground that the names of none of such witnesses were indorsed on the indictment, that they were not sworn, that none of them swore to any material fact in aid of the prosecution, and that all of such fees were taxed for mileage and attendance of such witnesses on the trial of the case.

It is first claimed that the record does not show the filing of the bill of exceptions in the clerk's office. A record entry, after reciting the overruling of the motion to retax costs and an exception by appellant, and making mention of the bill of exceptions, states, "which bill of exceptions is now tendered to the court and by the court signed and filed with the clerk of this court, said bill of exceptions being in these words;" this is followed by a transcript of the bill of exceptions. This recital of the filing of the bill is not in the bill itself, but is a record entry, and sufficiently shows that the bill was filed with the clerk.

Section 1740 Burns 1901, § 1671 R. S. 1881, requires the names of all material witnesses to be indorsed upon the indictment, but other witnesses may afterward be subpoenaed by the State; but, unless the names of such witnesses be indorsed on the indictment at the time it is presented, no continuance shall be granted to the State on account of the absence of any witness whose name is not thus indorsed. This section permits the use by the State of witnesses whose names are not on the indictment, and simply prevents the State from having a continuance because of the absence of a witness whose name is not on the indictment. § 1851 Burns 1901, § 1782 R. S. 1881. See Short v. State (1878), 63 Ind. 376; Siberry v. State (1893), 133 Ind. 677, 33 N.E. 681.

Section 8103 Burns 1901, § 6027 R. S. 1881 provides: "In all criminal cases where the person accused shall be acquitted, no costs shall be taxed against such person, nor against the State or county, for any services rendered in such prosecutions by any prosecuting attorney, clerk, sheriff, coroner, justice of the peace, constable or witness; but in all cases of conviction, such fees and costs shall be taxed and collected from the person convicted." This provision is modified by the subsequent enactment of § 1907 Burns 1901, § 1838 R. S. 1881, which provides: "When the defendant is found guilty, the court shall render judgment accordingly; and the defendant shall be liable for all costs, unless the court or jury trying the cause expressly find otherwise." Under this section the court may relieve a defendant from the payment of all costs, but it is not a matter of mere arbitrary discretion. "What particular facts," said the court in Welsh v. State (1890), 126 Ind. 71, 9 L. R. A. 664, 25 N.E. 883, "would authorize a court or jury, finding a defendant guilty, to relieve him from the payment of costs, we need not now inquire, but he should not be so relieved without some reason for so doing" See State v. Sevier (1889), 117 Ind. 338, 20 N.E. 245.

Section 1927 Burns 1901, § 1858 R. S. 1881, provides: "In case of the conviction of a defendant, no cost for mileage or attendance shall be taxed against such defendant in behalf of any witness who was summoned by the State to testify, but whose name was not indorsed upon the indictment nor upon the information, and who was not sworn in the cause, or who, if sworn, did not testify to any material fact in aid of the prosecution." It is also provided (§ 1866 Burns 1901, § 1797 R. S. 1881) that witnesses in a criminal prosecution, if subpoenaed, may be compelled to attend and testify without their fees being first paid or tendered, and that the court may recognize witnesses to attend and testify.

Prior to the enactment of § 1927, supra, the fees of all witnesses subpoenaed by the State, whether used or not or whether they testified to anything material or not, were taxed as costs against the defendant upon conviction. 1 R. S. 1876, p. 479; Schlicht v. State (1877), 56 Ind. 173. And it would seem that the purpose of § 1927, supra, was to relieve defendants from the payment of certain witness fees where there is a trial upon a plea...