State v. Everett

Mar 19, 1894
Reporters:
,
Before:
Lumpkin
Lumpkin, Justice.

1. At the February term, 1890, of the superior court of Gordon county, Everett, upon an indictment for assault with intent to murder, was convicted of an assault, and by the judgment of the court was sentenced to pay a fine of $500 and the costs of the prosecution, including the fees of the witnesses. The clerk issued an execution, in the name of the State, for the use of several of the witnesses, stating their names in the body ‍​​​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​​‌​​‌​​​‌‌‍of the execution, and indorsing on the back of the same the amount to which each was entitled. The execution referred to the judgment already mentioned, and recited that it was .issued in pursuance of the sаme. This execution was levied upon the property of Everett, who thereupon made and delivered to the sheriff’ аn affidavit of illegality, denying the correctness of the amounts stated to be due to some of the witnesses.

It does not distinctly appear from the record how the clerk arrived at the amount of the fees due the witnesses, respectively, but it is infеrable, from the allegations of the affidavit of illegality, that the witnesses went before the clerk and made affidavits as tо the number of days they had attended in obedience to their subpoenas. Copies of some or all of these affidаvits, not verified by the clerk, were attached to the record sent to this court, together with an ‍​​​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​​‌​​‌​​​‌‌‍agreement of counsеl that if this court should determine they were properly parts of the record, they might be examined and treated as such without being certified. “We find, upon examination, that they are not parts of the record of the present case, and thеrefore, even if material, they could not be considered in making up our judgment. They are, however, immaterial, and are mentioned only for the purpose of illustrating the position taken by counsel for the defend*577.•ant in error in the argument here. Referring to these affidavits, he treated the. case as though the. witnesses, respectively, had verified their subpoenаs under the provisions of section 3842 of the code, for the purpose of making them, together with the affidavits as- to attеndance thereunder, executions against the property of Everett. Viewing the ease in this light, the contention ■of defеndant’s counsel was, that the evidence showed “the witnesses had sworn falsely as to the number of days they attended at the February term, 1890, and therefore, were entitled to no fees at all as witnesses in the case, but were liable to Everett, under sеction 3843 of the code, for four times the amount of the fees unjustly ■claimed against him. Upon this assumption, counsel for the dеfendant further contended that although, in verifying their subpoenas, the witnesses had made mistakes against themselves as to the numbеr of days they had attended at previous terms of the court, they ‍​​​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​​‌​​‌​​​‌‌‍were not •entitled to prove this fact, even though as a result it would appear that the total number of days for which ■each claimed fees was correct. The answer tо all this is, that the witnesses had not undertaken to give the subpoenas themselves the force and -effect of executiоns by complying with the provisions of section 3842 of the ■code. The execution levied was issued by the clerk from a judgment of the.superior court, and the presumpfion, without regard to the information derived from the ■statements of counsel or an inspection of the copy affidavits, would be that the clerk discharged his duty and took the proper means of informing himself аs to the .amount due each witness- before undertaking to issue the execution. Of course, if he made mistakes which •operated unjustly against the defendant, they could, in the proper way, be- corrected; but we are quite certain ‘that- the- sеction of the code last cited has no application -whatever to a case of this kind..

*5782. The affidavit of illegаlity was based, as already stated, on the ground that the witnesses claimed more fees than they were entitled to receive. It under’took to specify the ‘number of days for which each witness claimed fees, the number of ‘days he actually attеnded, and the excess of legal fees claimed by each. We think that in order to authorize the levying officer to stay further proceedings, it was incumbent upon the defendant to pay the amount due each witness, according to the number оf days the affidavit of illegality admitted he had attended. This, however, was not done, but the sheriff returned the execution and the illеgality to court, and the issue thus made was tried by a jury. Logically, it was a proceeding in the nature of a motion by the defendant to have the costs retaxed, which was proper-enough ; but upon the trial it was error to refuse to allow each witness to prove the number of days he had attended court upon his subpoena, and thus establish, the ‍​​​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​​‌​​‌​​​‌‌‍correctness of thе amount in his favor for which the execution was issued. It is quite probable that at the trial the judge was aware of the errors made by the witnesses in their affidavits as to the number of days they attended at the February term, 1890, and that he refused to allow them to make the proof above indicated, because, in his opinion, they forfeited, by these mistakes, all right to prove the numbеr of days they had attended at previous terms, and thus show that the errors they made against the defendant as to the time of their attendance at the last term were exactly counterbalanced by the errors against themselves as to their attendance at former terms. If this be so, the case was tried upon the wrong theory. In any event, however, our opinion is that, as to the issue made by the levy of an execution of the kind mentioned and an affidavit of illegality thereto, it was the right of thе plaintiffs in execution to show, if they could, that the amounts in *579favor of each, as indorsed upon the execution, werе fair and correct, and to this end, to prove ‍​​​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​‌‌​​‌​‌‌​‌​‌‌​​‌​​‌​​​‌‌‍the total number of days they had attended during the entire pendency of the case. - Judgment reversed.