139 Wis. 211 | Wis. | 1909
1. The complaint evinces a main purpose to ■state a cause of action against the county for the value of a physician’s time and services in making examinations of the ■symptoms and mental condition of a defendant in a criminal trial and in attending court to testify with respect to his sanity “as an expert witness,” in the words of the complaint. Except for said quoted clause there is no suggestion as to the ■character of the testimony he gave, whether it related to facts which he discovered by observation, albeit a trained and expert observation, or to an opinion; probably both.
, The effect of our statutes is to require all persons to obey the subpoena of a court, and their compensation for such obedience is fixed at $1.50 per day, with mileage. Secs. 4063, 4064, 4067, Stats. (1898). In a civil action between private parties those fees must be paid in advance, if demanded. Sec. 4057, Stats. (1898). In a criminal case they need not be tendered or paid in advance (sec. 4058, Stats. 1898), though doubtless a contract may in some cases be implied to pay the specified fees for the service. The duty of every witness is to attend as long as commanded and to testify to. all material facts within his knowledge. This is a duty resting upon all members of the community as such to aid the courts in the administration of justice, and insistence upon it by the courts does not constitute such a taking of property as is forbidden by the constitution. West v. State, 1 Wis. 209. This is not seriously controverted by the appellant’s counsel in its application to what they call ordinary witnesses testifying to ordinary facts, but they contend that when a physician is called upon to give expert testimony his services are of a different character and cannot be demanded
In some of the earlier text-books and decisions it was asserted that courts could not or would not compel certain
Applying these principles to the present case, it is very obvious that no statute has authorized any one to make any contract for such services at the expense of the county. The allegation of the complaint is that all services of that character were performed at the request of the attorneys for the accused, albeit with their assurance that the county would be liable therefor. Liability cannot be imposed upon counties or other governmental subdivisions of the state except in •accordance with statute law, and no statute is referred to conferring any such authority upon counsel for one accused of crime. We are therefore unable to discover any basis upon which the county of Waukesha can be held liable for any compensation to this witness other than the statutory fees, if •indeed it can be made liable for those. '
2. We are in much doubt whether the complaint attempts to state any claim for statutory witness fees, or indeed whether they may not have been paid in- this case in the manner customary in criminal cases and especially homicide ■cases. A very liberal construction of the complaint might •disclose facts stated or reasonably implied to indicate the
By the Court. — Order appealed from is affirmed.