Lewis v. The Bd. of Commissioners of Wake Cnty.

Citation74 N.C. 194
CourtUnited States State Supreme Court of North Carolina
Decision Date31 January 1876
PartiesA. M. LEWIS, JR. v. THE BOARD OF COMMISSIONERS OF WAKE COUNTY.
OPINION TEXT STARTS HERE

There is no provision of law for the payment of witnesses summoned to appear and testify generally before the grand jury “in certain matters then and there to be enquired of;” and there is no authority of law to issue such summons.

Witnesses are entitled to compensation, where a bill is prepared and sent to the grand jury, with the names of those summoned endorsed thereon as sworn and sent.

This was a controversy submitted without action, upon a case agreed, and heard before his Honor Judge Watts, at June Term, 1875, of the Superior Court of WAKE county.

All the facts in the case are stated in the opinion of the court.

There was judgment in favor of the plaintiff; thereupon the defendant appealed.

Busbee & Busbee, and G. H. Snow, for the appellant .

Badger & Devereux, Batchelor & Son, and A. M. Lewis, contra .

BYNUM, J.

This is a controversy submitted without action, under section 315 of the Code of Civil Procedure, upon the following case agreed: A. M. Lewis, a citizen and resident of Franklin county, on the 8th day of April, 1875, was served with a subpœna, in the following words and figures, to-wit:

WAKE COUNTY--IN THE SUPERIOR COURT.

To A. M. Lewis, Jr., Greeting:

You are hereby commanded to appear before his Honor S. W. Watts, at Raleigh, instanter, to give evidence in a certain matter then and there to be enquired of by the grand jury. Herein fail not.

Issued the 8th day of April, 1875.

JNO. N. BUNTING,

Clerk Superior Court of Wake county.”

The plaintiff attended and gave evidence to the grand jury, as required. Thereupon a witness ticket was proved by him and certified by the Clerk as follows:

+-------------------------------------------+
                ¦“SUPERIOR COURT,¦)¦SPRING TERM, 1875.      ¦
                +----------------+-+------------------------¦
                ¦Wake County.    ¦)¦Before the Grand Jury.  ¦
                +-------------------------------------------+
                

A. M. Lewis, Jr., charges the State for six days attendance as witness, at $1.50 per day, $9.00. Mileage at 5 cents, $3.20.

This ticket sworn to before me, 10 cents. Total $12.30.

JNO. N. BUNTING, Clerk.”

The above case agreed was submitted to the Judge of the Superior Court of Wake, and it was by him adjudged that the said witness ticket be allowed, and that the defendants pay the same. From this judgment the defendants appealed to this court.

At common law, no costs were recoverable by the plaintiff or defendant, in civil actions or in criminal prosecutions. 2 Inst., 288. No fees need have been tendered or paid by the State, to compel the attendance of witnesses in criminal cases, because it was the duty of every citizen to obey a call of that description, and because it was a case also in which he was in some sense a party as a member of the commonwealth, supposed to be injured. 1 Greenl. Ev., sec. 311.

Costs are now given by statute, both in England and this country, but they are recoverable by law, only in those cases, State and civil, where they are allowed, and only in the manner and to the extent allowed by law. After a diligent search through the body of our statute law, we have been unable to find any provision for the payment of witnesses summoned to appear and testify generally, before the grand jury, “in certain matters then and there to be enquired of.” The summons in this case, does not command the attendance of the witness at a term of the court, nor purport to be issued by, or under the authority of the court, nor to have been issued in behalf of the State, nor to testify for the State. But waiving these irregularities, and assuming the summons to be regular in these respects, the important inquiry remains, whether witnesses before the grand jury are entitled to pay for attendance there, and if so, with what limitations. The result of the inquiry is, that there is no provision of law for their pay, where they are summoned merely to testify in matters of enquiry before the grand jury: but that they are entitled to compensation where a bill is prepared and sent to the grand jury with the names of the witnesses summoned, sworn and sent, endorsed thereon.

Witnesses are not entitled in the first case, because there is no authority of law to summon and send them before the grand jury, upon mere matters of inquiry, a power which, if allowed, is capable of the grossest and most oppressive abuse, coupled with great temptations to abuse it.

The object sought, in sending the witness in this case, before the grand jury, was to enable that body to ascertain whether the witness knew of any violation of the criminal law, and if he did, to make a presentment of it to the court. Properly, a presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation, without any bill of indictment before them. 2 Inst., 739. 1 Chit. Cr. Law, 162. 1 Bish. Cr. Pro., 731.

In England, almost every offender brought before the court for trial, has in the first instance, been examined and committed or bailed, by a magistrate, in the ordinary way, having been brought before him by a police officer, on his own judgment, or on the complaint of some private individual; though cases do occur where an offence is presented by the grand jury, without preliminary notice, against an absent party, “a mode of proceeding,” however, says Brown, “which is not commonly resorted to, nor expedient.” Com. Law, 991. 4 Bl., 301. Cooly, 311.

The English practice, which thus requires a preliminary investigation, where the accused can confront the accusers and witnesses with testimony, and have counsel, is more consonant to justice and the principles of personal liberty.

The powers of the grand jury, therefore, should not be extended farther beyond these conservative and salutary principles, than is clearly warranted by public necessity and the most...

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45 cases
  • United States v. Crispino
    • United States
    • U.S. District Court — Southern District of New York
    • March 24, 1975
    ...374 (D.Montana 1897): There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will......
  • Taylor v. State
    • United States
    • Florida Supreme Court
    • April 12, 1905
    ... ... county commissioners of Leon county aforesaid, at their ... adjourned meeting in January, A ... State, 70 Miss. 595, 13 So. 225, ... 35 Am. St. Rep. 664; Lewis v. Board of Commissioners of ... Wake County, 74 N.C. 194; State v ... ...
  • Coblentz v. State, 21.
    • United States
    • Maryland Court of Appeals
    • April 20, 1933
    ...their own, uninfluenced by the promptings or suggestions of others, or the opportunity thereof." Lewis v. Board of Com'rs of Wake County, 74 N. C. 194. Some cases of accidental departure may perhaps be ignored, but we have no occasion now to consider An objection to an indictment on such gr......
  • State v. Frazier
    • United States
    • West Virginia Supreme Court
    • February 6, 1979
    ...of this conduct. There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set ......
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