Murphy v. Madden
Before: Temple, Beatty
Synopsis
Payment of Witness in Criminal Case—Void Order for Warrant— Nunc Pro Tunc Order by Succeeding Judge.—An order of a superior judge not made by the court nor entered in the minutes of the court, directing the county auditor to draw his warrant for a specified sum “in favor of the above-named witness,” no name being inserted in the order, is void and ineffectual for any purpose. It cannot authorize the auditor to draw his warrant, nor constitute the basis of an order nunc pro tune made by a succeeding judge and entered upon the minutes of the court in favor of a witness named who. bad attended in a criminal case.
Id.—Mandamus to Treasurer.—Mandamus will not lie to the county treasurer to compel payment of a warrant drawn by the auditor under such void order.
Id.—Construction of Penal Code—Expenses of Poor Witnesses.—Section 1329 of the Penal Code does not provide a mode in which witnesses in criminal cases generally are to be paid; but relates only to the special case of the expenses of poor witnesses attending from outside the county, and simply furnishes the court with the means of procuring their attendance.
Id.—Pees in Criminal Cases—Act of 1895—Mode of Payment—Presentation to Supervisors.—The fee bill of 1895, supposing it to have any application to a witness for whom an order is made under section 329 of the Penal Code, does not provide a mode for enforcing the fees of witnesses attending in criminal cases; and if they constitute a valid charge against the county, which is not determined, they are to be submitted to the hoard of supervisors as other claims against the county are submitted.
Opinion — Temple
[675]
TEMPLE, J.
This appeal is from a judgment in the superior court denying a writ of mandate to the county treasurer. The judgment was upon demurrer, the plaintiff declining to amend.
The petition shows that petitioner attended as a witness in the trial of a criminal case, in obedience to a subpoena, for seven days, and to attend traveled one mile. Judge Claflin, who presided at the trial, made an order in writing, but which was not entered in the minutes of the court, as follows, after the title of the cause:
“The auditor of Modoc county, California, is directed to draw his warrant upon the treasurer of said county in favor of the above-named witness, payable out of the general fund of the county, for ten dollars and sixty cents.
“Witness my hand this 19th day of December, 1896.
“C. L. CLAFLIN",
“Judge of Superior Court.”
Thereafter, March 8, 1897, upon a showing, the superior court made what is called “an order
nunc pro kmc.”
That was after the term of Judge Claflin had expired, and Hon. J. W. Harrington was superior judge. In this order,
inter alia,
it is recited that- it appeared that the plaintiff, in obedience to a subpoena, actually attended as a witness in the trial of a criminal ease, and that the amount allowed was necessary for the expenses of the witness, and is not in excess of one dollar and fifty cents per day and ten cents per mile for travel, and the auditor was ordered to draw his warrant for the amount. The former order made by Judge Claflin is then described as being for the same amount, and the order, then proceeds as follows: “It is ordered that- this order be entered as of the same date, to wit, nineteenth day of.December, A. D. 1896, and be and operate as fully in particular as if said order had been made and entered by the Hon. Claflin on said date in the minutes of the court.” '
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