State v. Willis

• Decision Date: 04 February 1890
• Citation: 44 N.W. 699,79 Iowa 326
• Parties: STATE v. WILLIS.
• Court: Iowa Supreme Court

79 Iowa 326

44 N.W. 699

STATE

v.WILLIS.

Supreme Court of Iowa.

Feb. 4, 1890.

Appeal from district court, Hardin county; S. M. WEAVER, Judge.

This case is submitted upon certificate of the judge trying the same that, a verdict of not guilty having been returned, the cause came on for hearing, on the application of defendant, for the allowance of witness fees of J. P. Willis, witness for the defendant. “That such cause and question involves the determination of a question of law upon which it is desirable to have the opinion of the supreme court, as follows: The witness J. P. Willis is the father of the defendant, and resides at Woonsockett, Dak., a distance of three hundred and twenty miles from the court where the cause was tried. He was not subpœnaed, but came to court on request of defendant's counsel, as a witness, from his home, though his name was included in the order for the witnesses for the defendant. He attended court as a witness two days, and testified in the cause for the defendant. (1) Was the witness entitled to have costs taxed up against the county as mileage, for the whole distance of three hundred and twenty-miles from his home, with his two days' attendance at the court, amounting to $34.50, as claimed by the defendant? (2) Or was the witness entitled to have costs taxed up against the county for his two days' attendance at the court and one mile, as a witness picked up in court, he having come to court without being subpœnaed, as claimed by the state, which costs amount to $2.60? (3) Or was the witness entitled to have taxed up, as costs to the county, two days' attendance and mileage from the state line of Iowa, a distance of two hundred and forty miles only, and amounting to $26.50, as the court ordered, the costs to be taxed for the witness, against the county, on the application of the defendant? To which order and judgment of the court both the state and the defendant do now duly except; all of which is done in open court, at the time the order and judgment of the court is rendered.”John Y. Stone, Atty. Gen., and H. L. Huff, County Atty., for the State.

Albrook & Hardin and John S. Roberts, for appellee.

GIVEN, J.

1. The single question to be determined is whether the witness J. P. Willis is entitled to mileage for more than one mile; and, if so, whether from his home in Dakota, or from the state line. Code, § 3814, provides a fee for each days' attendance, and “mileage for actual travel per mile, each way, five cents;” and that “in criminal cases, where the defendant is adjudged not guilty, the fees above provided for attending a district court or justice's court shall be paid by the county upon a certificate of the clerk or justice.” Some such provision is necessary to secure to parties accused of crime a fair trial, and to witnesses who are compelled to attend and testify compensation for the time spent and expenses incurred in obeying the process of the court. It is a notorious fact that while the law stood thus these provisions were greatly abused; witnesses being subpœnaed upon the slightest pretext, and without knowing whether they were material or not, and in some cases defenses even going so far as to try to deter prosecution, and force a dismissal, by subpœnaing extraordinary number of witnesses, and creating unnecessary expenses. To prevent such abuses, the eighteenth general assembly enacted, as found in section 5095, McLain's Code, that “in no criminal case shall witnesses for the defense be subpœnaed at the expense of the county, except upon order of the court or judge before whom the case is pending; then...