Hewercle v. Gage County

• Decision Date: 03 January 1883
• Citation: 14 N.W. 549,14 Neb. 18
• Parties: WILLIAM HEWERKLE AND OTHERS, PLAINTIFFS IN ERROR v. GAGE COUNTY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 549

14 Neb. 18

WILLIAM HEWERKLE AND OTHERS, PLAINTIFFS IN ERROR v. GAGE COUNTY, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 3, 1883

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

J. A Smith, for plaintiff in error, cited Const., Art. I, Sec. 11 Comp. Stat., Sec. 437, p. 730. Comp. Stat., Sec. 541a, p 746.

Colby & Hazlett, for defendant in error.

OPINION

COBB, J.

Without stopping to inquire into the question of practice suggested by counsel for appellants in their brief, we will proceed to the examination of the case on its merits. The question is correctly stated by counsel: "Is the county liable for defendants' witness costs where they are indicted for a felony." Appellant cites Sec. 2, Art. 1 of the Constitution. Among the rights guaranteed by that section are the right to "appear and defend in person or by counsel," and "to have process to compel the attendance of witnesses in his behalf." Appellant also cites Sec. 437, Comp. S., p. 730, which provides for the assignment and payment of counsel when defendant is unable to employ and pay the same in all cases of prosecutions for felony, for the purpose, as we suppose, of showing or illustrating that the legislature, having made a provision carrying one clause or portion of the section into effect, it should be construed as carrying the balance of the section into effect in the same manner and as giving it a similar construction. We not only do not agree to this conclusion, but if this action of the legislature be taken to prove anything on the subject now under consideration, it must be taken to prove the very reverse, that the legislature, having passed a law for the payment of the counsel mentioned in the section of the constitution, it would, while considering the section, certainly have provided for the payment of the witnesses therein named, had it been the legislative construction of the constitution that the costs of the defendants witnesses were to be paid by the county. But the constitution deals only with the matters of right, while the law provides for the payment of counsel for certain defendants in criminal cases, not as a matter of right, but of charity, and limits its application to such defendants as are unable to employ and pay counsel.

Again if it be conceded that it was the intention of the framers of the constitution to make it the duty of the legislature to...