Gilliam v. State

By the Court.

Lyon, J.,

delivering the opinion.

The plaintiff in error had been convicted of assault and battery in the Superior Court of Dougherty county, and fined $50 and costs of the prosecution. In entering up judgment for the costs against him, the Clerk had neglected to tax in the bill of costs the fees of a witness in said case, amounting to the sum of $74 45.

This fact being made known to the Superior Court of Dougherty county, at the June Term, I860, of that Court, a rule nisi was granted, calling on the plaintiff in error to show cause why judgment should, not be entered up against him for the costs so omitted to be charged in the original judgment.

Plaintiff in error, in answer, showed, for cause, various reasons why the rule nisi should not be allowed; but, as none of them were relied on in the trial, it is unnecessary to notice them.

Upon the answer, however, an issue was made up, and the parties went to trial, at the December Term, 1860.

Counsel representing the motion tendered in evidence the original subpoena to the witness, with an affidavit, endorsed thereon, of the witness of the number of days she had been in attendance on the Court as a witness, and the number of miles she had traveled to the Court, from the respective counties in which she resided at the time of her attendance. To this evidence plaintiff in error objected, which objection was overruled by the Court, and the evidence went to the jury. The bill of indictment, with judgment of conviction, and an order of the Court passing upon the account of the witness, as sworn to on the back of the subpoena, and ordering the same to be taxed in the bill of costs, and to be paid to the witness by the treasurer of the county funds, were also put in evidence. "When the evidence was closed, the plaintiff in error moved that the Court award a non-suit, meaning, we suppose, that the Court should, on this evidence, discharge the rule nisi. The Court refused the motion, and the plaintiff in error complains that the Court erred.

1. In allowing the subpoena, with the endorsed affidavit of the witness, to go to the jury as evidence.

2. In refusing the motion to discharge the rule nisi, for want of sufficient evidence to make out a case against the plaintiff in error. These are the two questions made by this record. We will consider them together, as they will form but one, and that is, whether, upon the case, the motion to enter up judgment ought to have beenallowed by the Court?

The Act of 30th December, 1836, Cobb, 279, providing for the compensation,of witnesses who are compelled to attend on Courts, as witnesses for the State, in counties other than those of their residence, enacts that such persons shall be entitled to the fees therein stipulated, upon making affidavit before certain officers, “Jo the number of days he or she has been in attendance on the Court, and the number of miles traveled in going to and returning from the Courts;” which affidavit, when countersigned by the Clerk of the Court, becomes a warrant on the county treasurer for the amount due on the same, to be collected out of the defendant for the use of the county, when the same has been paid out of the county funds, in case of conviction, in the same manner as other costs.

To fix the liability of a convicted defendant for the witness’ fees, it is only necessary to show a substantial compliance with the provisions of that act on the part of the witness and the Court. Here, the witness had made the affidavit required, and in the manner required. It does not appear that the same was countersigned by the Clerk of the Court ; if it was, then nothing more was necessary in the absence of rebutting proof; but it does not appear that the affidavit was not countersigned by the Clerk, and, in the absence of affirmative proof of that fact, the presumption is that it was so countersigned. Whether the affidavit was so countersigned or not is immaterial in this case, for after the affidavit was so made, it was submitted to the Court, who approved, and ordered the same to be paid out of the funds of the county, and taxed in the bill of costs of the case, and this, in the opinion of this Court, was a substantial compliance with the requirements of the act, and fixed the liability of the plaintiff in error for the payment of the same. Of course, the plaintiff in error was not excluded thereby from showing that the affidavit was false, that she did not attend the stated number of days, or travel the distance charged, or

that she was a citizen of Dougherty, and therefore not entitled to so much compensation; and this was what he proposed to do, and for that purpose an issue was allowed him by the Court to be tried by a jury.

2. But, as he offered no evidence to support his issue, the intervention of the jury was wholly unnecessary. The Court did right to refuse the motion to discharge the rule nisi; indeed the Court ought to have made the rule absolute without submitting it to the jury, there being no evidence whatever offered by the plaintiff in support of this issue.

Judgment affirmed.