65 Neb. 276 | Neb. | 1902
In the district court of Fillmore county, Henry Biester was charged with a felonious assault and was tried and found guilty of an assault and battery. The court overruled a motion for a new trial and sentenced defendant to pay a fine of $50 and the costs of prosecution. The clerk of the court, acting on the suggestion of the trial judge, taxed against the state the fees and mileage of
We can not approve the decision nor the principle upon Avhich it is based. , The fees and mileage of the seven witnesses subpoenaed for the purpose of proving that the assault was felonious should not have been charged against the defendant, for upon that issue the state failed. There is, it seems to us, neither reason nor justice in imposing on a person who has committed a misdemeanor the expense incurred by the state in a futile effort to convict him of a felony. The costs of prosecution contemplated by the statute are in our judgment, the costs incurred in establishing guilt, in proving a specific charge, not those made in connection with a false accusation — a charge that is disproved and shown to be groundless. If the seven witnesses had been actually called and sworn they could have given no testimony releArant to the issue resolved in favor of the
The facts found by the trial court make it certain, regardless of the general rule in such cases, that the county attorney had good reason for subpoenaing witnesses to prove that the defendant Avas of bad repute in the neighborhood where he lived. Biester’s character was not necessarily involved in the issue; it was presumed to be good, but he was not required to rely on the presumption; he was at liberty to buttress it with evidence. Such evidence the state had, however, a right to contradict; but from the record before us, we can not believe that the county attorney acted with common prudence or discretion in summoning sixteen impeaching witnesses. Costs properly taxable to a defendant in a criminal cause are not all the costs which the person having charge of the prosecution may see fit to make, but only such as there was actual, apparent, or probable necessity for incurring. In determining AArha,t costs fall Avithin this description, the trial court has, of course, a very large discretion, but its decision is nevertheless subject to review, and will be reversed or modified Avhenever it appears that there has been an abuse of the discretionary power. In this case the action of the court Avas based on a Avrong principle. The fees and mileage of the sixteen witnesses were evidently taxed against the defendant because they had been subpoenaed and were in attendance, not because they Avere all supposed to be necessary for the purpose of impeachment. Trial courts usually limit the number of witnesses that may be called to prove facts collateral to the main issue; and we presume this discretionary poAver would have been exercised in this case
The order under review is reversed and the case remanded with direction to the district court to retax the costs in conformity with the views here expressed.
Reversed and remanded.