State ex rel. Wolfe v. District Court

delivered the opinion of the court.

On the twenty-third day of September, 1916, there was pending and set down to be tried on October 12, 1916, in the district court of Phillips county, the case of the State of Montana v. Walter A. James. James stands charged with the crime of murder, and the relator herein, as county attorney of Phillips county, applied to the court for an order authorizing the clerk to issue subpoenas for the attendance of certain witnesses in excess of six, deemed by the county attorney to be necessary for the proper prosecution of the cause. The respondent judge allowed the application in part and denied it in part; where*557upon the relator petitioned this court for a peremptory writ commanding said judge to make the order desired.

It is needless to inquire into the reasons for the refusal, [1] because the relator is not entitled to the relief sought. Section 9486, Revised Codes, provides: “The process by which the attendance of a witness before a court or magistrate is required is a subpoena. It may be signed and issued by # * * 3. The county attorney, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried. 4. The clerk of the court in which an indictment or information is to be tried”; etc. It is perfectly obvious that this statute reposes in the county attorney a power which is subject to no restraint, save his own responsibility under the sanction of his official oath, and subpoenas issued by him pursuant to this statute are in pari materia with those issued by the clerk. The witnesses whose attendance is thus required have the status of other witnesses; they may be called, and the right of the state to have them testify is to be determined by the rules that apply to other witnesses; they are subject to contempt for not appearing, and their absence has the same effect in an application for continuance as though they had been subpoenaed by the clerk.

Mandamus does not lie where other adequate remedy exists, and since the respondent’s refusal may be corrected by appropriate action on the part of the relator himself, the writ here sought must be denied and the proceedings dismissed. It is so ordered.