State v. . Hicks

May 2, 1899
Versions:124 N.C. 829
32 S.E. 957
1899 N.C. LEXIS 129
Clark, J.

The Court below found that the three witnesses named were necessary and material witnesses for the *837 defendant, duly ■ subpoenaed and examined, but that “for reasons satisfactory to the Court and in the exercise of the discretion in such cases vested in the presiding Judge,” he refused to order the witnesses paid by the County. From this order the defendant and the three witnesses named appealed.

The appellants contend that The Code, Section 747, prescribes that the Judge “shall” direct that the County shall pay the witnesses of an acquitted defendant (unless taxed against the prosecutor), but this must be taken in connec-tion with the last two lines of said Section (747), “in such manner and to such exteht as is authorized by law for the payment of State’s witnesses in like cases,” and as to State’s witnesses, the Sections 738, 744, place it in the discretion of the presiding Judge, for reasons satisfactory to him, to refuse to direct the fees of the State’s witnesses in whole or in part to be paid by the County.

In State v. Massey, 104 N. C., 877, the history of the taxation of witnesses’ fees is fully discussed, with statement of the reasons why it is left so largely to the discretion of the presiding Judge. It is therein said: “As to the necessary witnesses (of defendants who are acquitted) the constitutional provision (Art. I, Section 11) does not require that they shall be paid by the public, but merely deprives them of their common law right to look to the defendant for payment, and places them, except when there is some legislative enactment, upon the footing all State’s witnesses formerly held, and some still hold, of serving without compensation.” It is necessary that some one be charged with the duty of protecting the public from the imposition of paying witness fees in excess of what is just and reasonable. The J udge who tries the case can discharge that duty better than any one else, and, the statute having expressly vested it in *838 his discretion -upon satisfactory reasons appearing to him (Code, Sections 733, 144, 748) no appeal can be taken. State v. Massey, supra, which has been cited and approved in many cases, among others In Re. Smith, 105 N. C., at p. 170; Merrimon v. Commissioners, 106 N. C., at p. 372; State v. Horne, 119 N. C., 853; Guilford v. Commissioners, 120 N. C., 23; Clerk’s Office v. Commissioners, 121 N. C., at p. 30, and by Faircloth, C. J., in State v. Ray, 122 N. C., 1095, in which last the findings of fact axe almost identical with those in the present case.

There are many other instances in which the action of the Judge below is a matter of discretion and not reviewable, as setting aside or refusing to set aside a verdict because excessive or against the weight of the evidence, granting or refusing amendments, continuances, and in other matters fully as important as questions of allowing witness fees.

Affirmed.

Douglas, J., dissents.