Sargent v. Cavis

By the Court, Sawyer, C. J. : A. M. Swaney and Adelia Seale were indicted for murder in Mariposa County, and on their application the place of trial was changed to San Joaquin County. Several witnesses residing in the County of Mariposa attended the trial under subpoena. At the conclusion of the trial, on application of said witnesses, the Court made three several orders, allowing the witnesses so attending certain specified sums, amounting in the aggregate to something over one thousand two hundred dollars, and directing the County Treasurer of San Joaquin County to pay the same. The said orders have been brought up for review in pursuance of a writ for that purpose issued by this Court. It is claimed that the District Court exceeded its jurisdiction in making said orders.

Section five hundred fifty-six of the Criminal Practice Act of 1851 provides, that: “When a person shall attend before a Magistrate, Grand Jury, or Court, as a witness on behalf of the People, upon a subpoena, or by virtue of a recognizance, and it shall appear that he has come from a place out of the county, or that he is poor, the Court, if the attendance of the witness be upon a trial, by an order upon its minutes, or in any other case, the County Judge, by au order subscribed by him, may direct the Treasurer of the county to pay the witness a reasonable sum, to be specified in the order, for his expenses.” And section five hundred fifty-seven provides, that “Upon the production of the order, or a certified [556]copy thereof, the County Treasurer shall pay the witness the sum specified therein out of the County Treasury.”

Section five hundred fifty-six certainly authorizes the Court to make orders of the character of those in question. The language is very specific, and admits of no other construction. In this case all the conditions upon which the Court is authorized to act are found. "We can perceive no constitutional objection to the provision. The taxation of costs, which includes the determination of the amount of the allowance made to witnesses, who, willing or unwilling, are required by the process of the Court to attend trials at a distance from their residences, in which they have no special or peculiar personal interest, is incident to every judicial proceeding, and the jurisdiction to hear and determine the principal case necessarily involves jurisdiction over all mere incidental matters. It is certainty competent for the Legislature to make the costs in proceedings for the general administration of the criminal law, in which the People arc parties plaintiff, chargeable upon the people, either of the State at large, or of the county in which the proceeding originates, or is had. The county is hut a subdivision of the State, adopted for the more convenient administration of the Government. The People, as plaintiffs, are parties to the action in which the allowance is made, and are heard through the District Attorney. The allowance is a judicial act, and when made in a case authorized by law, is conclusive upon the county.