1. Roberts was indicted for the offence of robbery. When he was arraigned for trial he moved for a continuance on the ground of the absence of two witnesses, Hall and Stocks. The court refused to continue the case, and this is one of the grounds of his motion for a new trial. It is recited in this ground of the motion for a new trial, that when the defendant was put on notice that the case would be called for trial on a certain day, he presented a petition to the court asking that an order be granted allowing these witnesses to be brought into court to be sworn in his behalf. The petition alleged that Hall and Stocks were convicts in the *71penitentiary, and set out facts the accused proposed to prove by them, which, if true, appear to be material. The presiding judge declined to issue the order to have the witnesses brought from the penitentiary, for reasons assigned by him which will be found in the official report. One of the reasons was, that he felt he ought not to put upon the county the expense of bringing these witnesses from the penitentiary. He offered, however, to issue the order and have them brought into court if the defendant would relieve the county of this expense. Whether the judge erred in refusing to issue the oi’der •except on the terms proposed by him, is the controlling question in the case. The plaintiff in error contends that his petition asking the court to order the witnesses to be brought from the penitentiaryto testify was founded on the act of September 27th, 1883 (Acts, p. 106), and that having complied with the provisions of that act, the judge erred in not granting the order. We do not thiuk he complied with that act. The act requires the petition to be addressed, not to the judge of the superior court, but to the governor; and if the judge approves the petition, the act commands the governor to issue his order to the person having charge of the convict, to deliver him to the sheriff of the county in which the convict is desired as a witness. Addressing the petition to the governor is not a mere technicality; it is a matter of substance. The governor has control of all convicts confined in the penitentiary of this State, and the records in the executive department or in the office of the principal keeper of the penitentiary disclose where each convict is confined. The legislature may have been of the opinion that it would be better for the governor to issue the order than for the trial judge to do so.Whatever may have been the reason for the requirement, it prescribed the terms on which the application should be granted, and unless these terms were com*72plied with, the judge was not compelled to grant the application under this act.
2. It was contended that under the constitution, art. 1, section 1, paragraph 5 (Code, §4997), which declares that every person charged with an offence against the-laws of this State shall have compulsory process to obtain the testimony of his own wituesses, and under section 4027 of the code, which declares that “ any judge of the superior court may issue his order to any officer-having any person in his custody lawfully imprisoned, to produce such person before his court for the purpose of giving evidence in any criminal cause pending therein, without any formal application or writ of habeas corpus for that purpose,” the judge had the power, and it was-his duty, to grant the order prayed for by the defendant. If section 4027 applies where the person desired as a witness is imprisoned as a convict in the penitentiary, it imposes no absolute duty on the judge to direct or require that the order for producing the convict shall be executed at the expense of the public, even though the applicant for the order be unable from his poverty to defray the expense, and even if the judge in the exercise of his discretion might, if he thought proper, make the county chargeable therewith. The constitutional right to have compulsory process for witnesses does not include the right of having them brought into court at public expense. On this subject see: State v. Kennedy, 20 Iowa, 372; State v. Waters, 39 Maine, 54; ex parte Marmaduke, 91 Mo. 228; Willard v. Superior Courts 22 Pacific Rep. (Cal.) 1120. No right of charging the public with the expense of bringing such witnesses into court has been expressly conferred by statute, except by the act of 1883, above referred to, and under that act the right is not unconditional, but is limited by the sound discretion of the judge, to be exercised on the special facts of the case.
*733. Treating the application in the present case as having been made under section 4027 of the code, supra,. and the judge not having denied the order or process applied for, but having only declined to have it executed, at the charge of the county, there was no abuse of discretion in refusing the application.
4. After a careful review of the other grounds of the motion for a new trial, we do not think the court abused its discretion in overruling them all.
Judgment affirmed.
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