Hellams v. Greenville County

The opinion of the court was delivered by

The appellant was bound over and appeared as a witness for the defendant in a case of arson. He received a certificate, signed by the clerk of the court and by the Circuit Judge, to the effect that he had attended the trial of the cause as such witness and was entitled to receive therefor the sum of $5.35. This certificate did not state that the witness was “material.” It was presented to the board of county commissioners for payment and was disallowed by them. On appeal this judgment was sustained by the Circuit Judge solely on the ground that the certificate does not state the “materiality” of the witness. The claimant appeals to this court, on the ground that the certificate as given was tantamount to one stating the “materiality” of the witness. The respondents, in accordance with the practice, gave notice that if this court should find itself unable to sustain the judgment below, on the ground on which it was rested by the Circuit Judge, .then the respondent would insist that said judgment should be sustained on the ground that “in no case is the county liable for the fees of the defendant’s witnesses in criminal cases,” &c.

There are several provisions in our law as to costs of witnesses in State eases, which do not seem to be always entirely consistent. But in allowing costs, there is always one safe rule — costs and fees are entirely statutory. He who seeks to be paid fees and costs, must point out the law which allows them. Subdivision (2) of section 622 of the General Statutes provides that “each county shall pay witnesses’ fees in State cases for actual attendance upon the Circuit Court as provided by law.” But the question recurs, what are the provisions of law upon the subject? Section 2197 of the General Statutes provides as follows: “No fees or other compensation shall be allowed to any witness bound over or summoned to testify in any case in the Circuit Court of General Sessions, unless the Circuit Judge, who tried the cause in which the witness was summoned, shall certify that such wit*443ness was material, and in that case,” &c. Here the Circuit Judge, who tried the case in which the witness was examined, made no such-certificate “that said witness was material,” and therefore we cannot say that the Circuit Judge committed error in affirming the decision of the county commissioners. It was neither within his province nor ours to dispense with a statement of “materiality” in the certificate, which the law seems to require as important.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.