198 A. 925 | Pa. Super. Ct. | 1938
Argued March 10, 1938. This is an appeal from the order of the lower court dismissing exceptions to certain costs taxed in a commonwealth case.
The facts, which were not in dispute, may be stated as follows:
C.M. Ross, a member of the Pennsylvania state police force, now the Pennsylvania motor police force (Act approved June 29, 1937, P.L. 2436,
We will consider, first, the officers' witness fees. They are agents and employees of the state and are paid by the state treasurer for their services. The general policy of the state is that no officer of the law shall be allowed to collect two fees for the same public service. In Walsh v. Luzerne County,
That case may be readily distinguished from the one at bar, as a municipality is not a party to a criminal prosecution; nor is a municipal officer an agent or employee of the commonwealth. Here, the commonwealth and defendant were the actual parties to the criminal prosecution. The prosecuting of criminals and attending their trials are part of the duties of these state officers. The Act of May 2, 1905, P.L. 361, creating a department of state police, was not passed as a revenue measure, and neither it nor the amendments thereto provide for the collection of witness fees by members of the state police. If it had been the intent of the legislature that an officer was entitled to compensation in addition to his salary for services performed within his line of duty, it, undoubtedly, would have so provided. It is stated in an opinion of Attorney General John C. Bell, in 1913 (see 61 Pitts. L.J. 592), that a special agent of the dairy and food bureau, whose salary was paid by the state, could not recover witness fees for himself or for the commonwealth in a criminal proceeding in which the agent was both the prosecutor and a witness. See, also Sadler — Criminal Procedure in Pennsylvania (2d ed.), vol. 2, § 764. *120
We concur with the learned court below that the witness fees of these officers are not legally a part of the costs in a criminal prosecution, and the defendant, therefore, was not obligated to pay them.
That brings us to the question whether the fees and mileage of the constable were proper items of taxation.
The court, in sustaining the exceptions thereto, held that it was a duty of the officers of the commonwealth to be present without being served with a subpoena, and to prosecute alleged offenders against the law of the land, and, therefore, it was unnecessary to serve a subpoena to insure the appearance of a prosecutor, or of a witness if he is a state policeman, at the trial of the case.
We find no authority that a private prosecutor in a criminal case must be present at the trial. By the Act of March 31, 1860, P.L. 427, § 27 (19 P. S. § 262), the prosecutor's name, if any there be, must be endorsed on the indictment. If, in fact, there is no private prosecutor, that is unnecessary, and the indictment will not be quashed for that reason: Com. v. Samson,
The accused has no constitutional right to meet the prosecutor face to face. Article I, § 9, of the Pennsylvania Constitution provides: "In all criminal prosecutions the accused has a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor." This does not require a prosecutor to be present at the trial unless he is a witness, and, if he is [a witness], he should be subpoenaed like any other witness. Bishop, in his Work on New Criminal Procedure (2d ed.), Chap. XLV, § 691ff, states: "He [the private prosecutor] is not a party; and, in these cases as in others, the costs and expenses, whether on one side or the other, are a mere creature of statute, recoverable only when and to the extent prescribed." See also, Reg. v. Gurney, 11 Coxe's Criminal Cases 414, 422.
The first chapter of 1 Chitty's Criminal Law (2d Am. Ed.), entitled "Of The Prosecutor," deals at length with the duties, rights, and privileges of private prosecutors in criminal cases at English common law. While the question before us was not there definitely answered, the author stated (p. 2): "And though the original prosecutor die, the proceedings will not be defeated even in the case of a libel or assault, or other injury of a private nature; because they are professedly instituted not for the satisfaction of wrongs to individuals, but for the furtherance of public justice, and to punish the violation of the public peace." See also Com. v. Cuddy et al., 72 Pitts. L.J. 937. A private prosecutor may be held, as any other witness, by a magistrate and bound over to prosecute and give evidence: Chitty, supra, pp. 4, 89. See also Sharswood's Blackstone's Commentaries (ed. 1867) 4th Book, p. 296. That power *122 continues to be vested in a magistrate in this commonwealth.
We are of the opinion that the costs incurred by the constable were properly taxable.
The order of the learned court below sustaining the exception to taxation of the officers' fees is affirmed; that part of the order disallowing the constable fees for service of subpoena on these officers and mileage is reversed; costs to be paid by the county.