Henderson v. Evans

• Citation: 29 S.E. 5,51 S.C. 331
• Parties: HENDERSON et al. v. EVANS.
• Decision Date: 19 February 1898
• Court: United States State Supreme Court of South Carolina

29 S.E. 5

51 S.C. 331

HENDERSON et al. v. EVANS.

Supreme Court of South Carolina

February 19, 1898

Appeal from general sessions circuit court of Laurens county; O. W Buchanan, Judge.

Action by the state against Harry Evans and others. George Henderson and others, witnesses for defendants, appealed from an order directing the clerk of court not to pay them witness fees. Affirmed.

Johnson & Richey, for appellants.

Thos S. Sease, for the State.

JONES J.

Appellants were bound over to attend, and did attend, the court of general sessions for Laurens county, July term, 1897, as witnesses for defendants in the case of the state against Harry Evans and others, charged with assault and battery with intent to kill. After the acquittal of defendants, the appellants applied to the circuit judge for certificates that they were material witnesses, with a view to draw pay as witnesses. The circuit judge, while certifying as to their materiality as witnesses, directed the clerk of the court not to issue pay certificates to appellants, for the reason that defendants were tried for a misdemeanor, and that the county is not liable for costs and fees of defendants' witnesses in a case of misdemeanor. The only question presented here is whether the county of Laurens is liable for the costs and fees of defendants' witnesses in a case of misdemeanor. We hold with the circuit judge that the county is not liable. The right to such fees depends wholly upon statute. In section 622, Gen. St., being section 676, Rev. St. 1893, it is provided that "each county shall pay *** (2) witnesses' fees in state cases, for actual attendance upon circuit courts as provided by law." But by an act approved February 4, 1896, entitled "An act to amend section 2638 of the General Statutes, being section 45 of the Revised Statutes, Criminal Code, Vol. 2, in reference to defendants' witnesses and regulate their pay," found at page 102 of the Acts of 1896, it is provided that "in all criminal prosecutions the accused shall have compulsory process for obtaining witnesses in his favor, and in felonies, and no other cases, such witnesses shall receive the same pay as the state's witnesses upon the certificate of the trial judge that the testimony of such witnesses was material to the defense: provided," etc. It is manifest from this act that the liability of a county to pay fees of defendants' witnesses is limited to felonies. It is true that ...