State v. Guilbert

• Court: Ohio Supreme Court
• Writing for the Court: SUMMERS, J.
• Citation: State v. Guilbert, 83 N.E. 80, 77 Ohio St. 333 (Ohio 1907)
• Decision Date: 17 December 1907
• Docket Number: 10536
• Parties: The State, Ex Rel. Commissioners Of Franklin County, v. Guilbert, Auditor.

83 N.E. 80

77 Ohio St. 333

The State, Ex Rel. Commissioners Of Franklin County, v. Guilbert, Auditor.

No. 10536

Supreme Court of Ohio

December 17, 1907

Employment and pay of expert witnesses - Section 1302-1, Revised Statutes - Bill of costs not to be paid out of state treasury.

1. The compensation of expert witnesses for their services rendered under Section 1302-1, Revised Statutes (95 O. L., 282), is not costs that the statutes authorize to be paid out of the state treasury.

2. The inclusion by the clerk of the court of common pleas of such compensation in the bill of costs of prosecution, and the certificate by the prosecuting attorney of the correctness and legality of such item, and its allowance by the warden of the penitentiary, do not make it the duty of the auditor of state to draw a warrant for its payment.

This is an original action in this court. The petition prays for a writ of mandamus directing the auditor of state to issue his warrant on the treasurer of state for the amount paid by the commissioners of Franklin county for the services of an expert witness in a case of murder in the second degree.

It is averred in the petition, that on the trial, it appeared necessary to the prosecuting attorney to have the testimony of an expert witness; that a certain expert was subpoenaed and testified; that the expert presented a bill for his compensation; that the prosecuting attorney certified that the services were necessary; that the county commissioners allowed the claim, the trial judge approved it, the county auditor issued a warrant on the county treasurer for its payment, and that the county treasurer paid it. It is further averred that the accused was convicted and sentenced to the penitentiary for life and to pay the costs of prosecution, and that thereupon a writ of execution against the property of the defendant was issued and returned by the sheriff "No goods, etc," and that thereupon the clerk of the court made a complete bill of the costs in the prosecution and included therein the compensation paid said expert, and that the prosecuting attorney examined into the correctness and legality of each and every item therein charged and certified that each and every item was correct and legal, and it is averred that the bill of costs so certified was then presented to the warden of the penitentiary, who allowed the same and certified such allowance, and that said bill, with such certificate of the warden, was then presented by the sheriff to the auditor of state, who deducted the item for the compensation of the expert from the amount of the bill, and refused to issue a warrant for the payment of that item.

The defendant has filed a general demurrer to the petition.

Messrs Webber, McCoy, King & Game, for relator.

The compensation allowed an expert witness under Section 1302-1 Revised Statutes, when all the requirements of that statute have been complied with, is a part of the costs in the case and in a criminal prosecution is a proper item to be included in the complete bill of costs required to be made under Section 7332, Revised Statutes, and to be paid by the state.

This question involves the interpretation and construction of Sections 1302-1, 1306, 7332, 7333 and 7336, Revised Statutes.

The very purpose of Section 1302-1, Revised Statutes, is to provide for the necessary payment of a necessary witness, and the necessary payment of a necessary witness is a necessary part of the costs of the action in which that witness appears.

In case of a conviction for felony the justice of the peace, police judge or justice, mayor, marshal, chief of police, constable and witnesses shall be paid out of the county treasury and inserted in the judgment of conviction, so that except in capital cases the same may be paid to the county out of the state treasury. Section 1306, Revised Statutes.

Now there is no distinction made here between an expert witness and any other witness. If he is a witness in the case he must be paid out of the county treasury. And expert witnesses are not excluded because they are to receive special compensation for their special services. According to this statute, the costs of witnesses shall be paid out of the county treasury and inserted in the judgment of conviction, so that the same may be paid to the county out of the state treasury.

The word "costs" has a certain definite meaning as used in Section 7332, Revised Statutes, and in criminal proceedings.

Costs in criminal proceedings are those charges fixed by law which have been necessarily incurred in the prosecution of one charged with crime, as compensation to officers for their services, and disbursements to witnesses for their testimony. Am. & Eng. Ency. Pr., Vol. 8, 955; Albertson v. Kriechbaum, Sheriff, 65 Ia. 17; State v. Belle, 92 Ia. 258.

The word "costs" includes those charges fixed by law or rule of court which the record shows have been necessarily incurred in the prosecution of an action or proceeding. Swartzel v. Rogers, 3 Kan. 380.

Where a criminal cost bill, properly certified as to its legality and the correctness of the items included therein, is presented to the auditor of state, such auditor has no authority to arbitrarily strike from such bill an item of costs on the grounds that the item is illegal or that it is not a proper claim against the state. But it is his duty under such circumstances to refer such item to those who by law are charged with the duty of determining the correctness and legality of the items included in such cost bill. Section 7332, Revised Statutes.

If the auditor of state has some power to finally determine the legality of a cost bill or an item of such bill, the provision of the statute enjoining this duty upon the prosecuting attorney is a vain and useless formality.

Mr. Wade H. Ellis, attorney general, and Mr. W. H. Miller, for defendant.

No contention is made by defendant as to the right of the prosecuting attorney to employ an expert witness, or the county commissioners to compensate said witness in such amount as they may deem just and proper. Defendant's contention is, however, that such compensation when paid by the county commissioners may not be included in the cost bill to be paid out of the state treasury. While it is true that Section 1306, Revised Statutes, provides for the payment of witness fees out of the county treasury, it is equally true that Section 1302 fixes such witness fees at $1.00 per day and five cents per mile, and no more. The expert witness in a case may be subpoenaed, compelled to attend upon the court and there testify the same as any other witness and is entitled to the same fees as provided in Section 1302, and such fees may be properly taxed in the "bill of costs."

If, however, it is deemed essential by the prosecuting attorney to the due administration of justice to enter into a special contract with such witness by reason of some special or expert knowledge he possesses relative to the issues involved in the trial such employment may be made under the provisions of Section 1302-1, and the county commissioners may allow said witness such extra compensation for his service rendered the prosecuting attorney in the preparation and trial of the case, as they may deem just and proper, but there is no authority of law to tax such extra compensation in the "bill of costs" to be paid out of the state treasury.

Section 7332, Revised Statutes, contains no provision for including in the complete "bill of costs" the extra compensation paid a witness for his services as an expert under Section 1302-1.

The word "costs" has a legal signification and includes only those expenditures which are by law taxable. State, ex rel., v. Commissioners, 14 C. C., 26.

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