| N.D. | Jun 24, 1907
This appeal presents the question of the right of an attorney to demand compensation from the county when he has been assigned by a justice’s court to appear for an indigent defendant on a preliminary examination upon a charge of unlawfully selling mortgaged property. The plaintiff was assigned to defend, and appeared for the defendant, and the justice of the peace fixed his compensation at the sum of $25. The county commissioners refused to* pay or allow said sum as a claim against the county. Thereupon plaintiff brought an action against the county for said sum in justice’s court, and recovered judgment for said sum with costs. The district court reversed the judgment of the justice of the peace on appeal thereto, and dismissed plaintiff’s action.
The sole question before us is whether the county is liable for a reasonable, attorney’s fee under such facts. 'Section 13 of the Constitution gives to one accused' of crime the right “to appear and defend in person and with counsel.” Section 9758, Rev. Codes 1905, relating to preliminary examinations, provides that “the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings.” Section 9759 is as follows: “He must allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendánt may name. The
It is claimed by the appellant that the section last quoted confers upon a justice’s court the power to assign counsel for the defense of indigent persons on a preliminary examination. The argument advanced is that a preliminary examination is a trial within the meaning of that section. We cannot agree to this conclusion. See Enc. PL & Pr. p. 821, and cases cited. Upon a trial, whether civil or criminal, certain issues are determined finally. In a trial of a criminal action, the guilt of the accused is finally determined subject to appeal or other proceedings. On a preliminary examination there is no final determination of any issue on the question of guilt. The accused is held to answer on showing of probable cause of guilt, or discharged. If held to answer, the trial may follow in a court of record, but the examination is no part thereof. The mere reading of section 10216, supra, makes it too clear for discussion that it can have no application to preliminary examinations. It plainly applies to trials only. It may be admitted that a preliminary examination is a proceeding in a criminal action, and still plaintiff’s contention that this section applies to preliminary examinations would not follow. If the county is liable for attorney’s fees on preliminary examinations, the liability must rest upon some other provision of law. The constitutional provision referred to has no application to the ques
On comparison of sections 8475, 9759, and 9760, with section 10216, it is seen that the legislature has said what the rights of the accused are as to having counsel to represent him in every criminal proceeding before courts. The fact that no power is given justices of the pea-ce or committing magistrates to appoint counsel and provide for their -compensation, and, having made such provisions by section 10216, supra, it seems evident that the legislature intended to withhold such power from these inferior -courts. Persons accused of -crime, -who are without means, have no constitutional right to have counsel assigned to them and paid by the county. They have the right to be represented by counsel, but that means -no more than that they shall provide for their compensation and employment .themselves. The statutes do not in terms or by implication empower these inferior -courts to bind the -county to pay for attorney’s services under such circumstances. A reading of all the statutory provisions relating to this subject clearly shows that it was not intended to -confer such power upon justices of th-e peace or committing magistrates. It is a matter of doubt whether -courts of record have the power to bind the county for the compensation of attorneys appointed by them to defend indigent persons -accused of crime in the absence of statutory authority. There is a wide diversity of judicial -opinions on this question among -courts of high standing. People ex rel. Ransom v. Board of Supervisors of Niagara County, 78 N.Y. 622" court="NY" date_filed="1879-11-11" href="https://app.midpage.ai/document/people-ransom-v--board-of-supervisors-of-niagara-county-3617588?utm_source=webapp" opinion_id="3617588">78 N. Y. 622;
The judgment is affirmed.