61 Neb. 871 | Neb. | 1901
The plaintiff in error seeks to reverse a judgment of the district court of Otoe county imposing upon him a fine of $50 for contempt of court. The act constituting the offense whereof he was charged, as the same appears from the transcript, was his failure to obey a subpoena duly issued by the clerk of said court in a criminal cause
3. It is urged that'the witness having demanded his fees in advance, and the state having failed to pay them, he was thereby absolved from his obligation to attend in obedience to the subpoena. It will be borne in mind that the subpoena under consideration issued in a criminal case, but counsel insist that, the same rule applies in criminal as in civil cases. We can not assent to this doctrine. Section 355 of the Code of Civil Procedure, which permits a witness to insist on the payment of his fees as a condition precedent to obeying the subpoena, applies only to civil cases. We discover nothing from which we can infer that it was intended to apply also to criminal cases. The fees in criminal cases are paid by the county. We know of no provision of law that authorizes their payment before they are audited and allowed by the county board, or that authorizes that body to audit and allow them before they are actually earned. Besides, it is not unusual for arrest and trial to take place between sittings of the county board'; or again, that body might' decline to allow such fees in advance even though in session and authorized to do so. It would require a very plain provision of law to justify the belief that the legislative branch of the government intended to interpose such obstacles to the prosecution of crime.
2. It is urged further that the court erred in refusing to permit plaintiff in error to show that it was impossible for him to obey the writ. The evidence shows that he was in Otoe county at the time he was served with the subpoena; that some five days after the service of the subpoena he had a conversation with the county attorney of that county, in the course of which he informed the county' attorney of the service of the subpoena; that he expected to go to Illinois; that he had no way of making a living in Otoe county; -that he had no money to pay out for railroad fare to come back from Illinois; and that
The judgment of the district court should be affirmed.
By the Court: For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.