Barber v. Moss

Utah Supreme Court

Barber v. Moss

282 P.2d 838, 3 Utah 2d 268, 50 A.L.R. 2d 1436, 1955 Utah LEXIS 140

CourtUtah Supreme Court

DecidedApril 26, 1955

Docket8180

StatusPublished

Cited by3 cases

This text of 282 P.2d 838 (Barber v. Moss) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barber v. Moss, 282 P.2d 838, 3 Utah 2d 268, 50 A.L.R. 2d 1436, 1955 Utah LEXIS 140 (Utah 1955).

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Opinions

HENRIOD, Justice.

Appeal from a judgment denying plaintiff witness fees during the time he was jailed as a material witness awaiting trial, because he was indigent and could not post bail. Affirmed, no costs awarded.

Plaintiff urges that Title 21-5-4, U.C.A.1953, which authorizes payment of fees for witnesses attending upon a court, requires payment to plaintiff of such fees on the theory that he actually “attended” court during his enforced custody awaiting trial. Respectable authorities support counsel,¹ which represent the minority rule. We do not believe such construction must [269]*269be given the statute. We feel constrained to espouse the majority rule, expressed in the language of Sec. 885, 58 Am.Jur. 506 {Witnesses), as follows:

“In the majority of jurisdictions wherein the question has arisen, it has been held that there can be no recovery even though the failure to furnish bail results from no fault of the witness, the courts holding that statutes authorizing payment of a witness while attending court (italics supplied) do not extend to a time while the witness is forcibly detained waiting for the trial to take place.”

Historically, the majority view is bottomed on the conception that every member of an orderly community, in exchange for the benefits he derives therefrom, is duty bound to testify as a witness, — without compensation, if necessary,² — and, as an adjunct thereto, be required to be detained to assure appearance at a trial that vitally may be of interest in preserving such orderly community.³

Although the majority rule seems to deal harshly with one’s liberty, it is not too different basically than the rule which twice we have enunciated,⁴ that an attorney is obliged, as his contribution to society, to expend of his time, his property and his enforced employment by court order, in defense of the indigent. Again, it would seem no harsher to deny witness fees or other compensation to the detained witness than it would to the detained accused who ultimately is acquitted, or to the person mistakenly convicted and later proven innocent, — neither of whom is able to obtain witness fees or other compensation, although these last two persons carry with them a lingering stigma born of accusation itself, which does not attach to him who is a detained witness only.

It appears to us that redress here is not addressable to the statute on witness fees, but to the legislature, where, in equity and justice, compensation can and generally should be made available to the detained material witness, to the detained but later acquitted accused and to the mistakenly imprisoned convict, later proved innocent.

Although not a matter of appeal, it seems to us that the plaintiff here, who spent 178 useless and wasted days in jail awaiting trial, should have been accorded the benefits which Titles 77-15-29 and 77-15-31, U.C.A.1953 extend to indigent witnesses unable to post bail not because of their fault but because of their misfortune, — sections [270]*270which allow that such persons forthwith might he questioned, their testimony perpetuated and they discharged. Here, where such benefits were not extended, it might he that the hoard of examiners and the legislature, on proper application, would consider the advisability of making available to the plaintiff a reasonable sum as compensation for time lost and liberty restricted.

The dissent’s quotation from a Maryland case assumes facts which are not reflected in the record here, and any criticism impliedly leveled at public officials in that forum is- not apropos or analogous here, where the record is silent as to whether plaintiff was honest, friendless or the victim of'enforced companionship with the depraved. Whether all or any of these things were true here, it is still a matter for legislative and not judicial legislation.

McDonough, c. j., and crockett and WORTHEN, JJ., concur.

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HENRIOD, Justice.

Appeal from a judgment denying plaintiff witness fees during the time he was jailed as a material witness awaiting trial, because he was indigent and could not post bail. Affirmed, no costs awarded.

Plaintiff urges that Title 21-5-4, U.C.A.1953, which authorizes payment of fees for witnesses attending upon a court, requires payment to plaintiff of such fees on the theory that he actually “attended” court during his enforced custody awaiting trial. Respectable authorities support counsel,¹ which represent the minority rule. We do not believe such construction must [269]*269be given the statute. We feel constrained to espouse the majority rule, expressed in the language of Sec. 885, 58 Am.Jur. 506 {Witnesses), as follows:

“In the majority of jurisdictions wherein the question has arisen, it has been held that there can be no recovery even though the failure to furnish bail results from no fault of the witness, the courts holding that statutes authorizing payment of a witness while attending court (italics supplied) do not extend to a time while the witness is forcibly detained waiting for the trial to take place.”

Historically, the majority view is bottomed on the conception that every member of an orderly community, in exchange for the benefits he derives therefrom, is duty bound to testify as a witness, — without compensation, if necessary,² — and, as an adjunct thereto, be required to be detained to assure appearance at a trial that vitally may be of interest in preserving such orderly community.³

Although the majority rule seems to deal harshly with one’s liberty, it is not too different basically than the rule which twice we have enunciated,⁴ that an attorney is obliged, as his contribution to society, to expend of his time, his property and his enforced employment by court order, in defense of the indigent. Again, it would seem no harsher to deny witness fees or other compensation to the detained witness than it would to the detained accused who ultimately is acquitted, or to the person mistakenly convicted and later proven innocent, — neither of whom is able to obtain witness fees or other compensation, although these last two persons carry with them a lingering stigma born of accusation itself, which does not attach to him who is a detained witness only.

It appears to us that redress here is not addressable to the statute on witness fees, but to the legislature, where, in equity and justice, compensation can and generally should be made available to the detained material witness, to the detained but later acquitted accused and to the mistakenly imprisoned convict, later proved innocent.

Although not a matter of appeal, it seems to us that the plaintiff here, who spent 178 useless and wasted days in jail awaiting trial, should have been accorded the benefits which Titles 77-15-29 and 77-15-31, U.C.A.1953 extend to indigent witnesses unable to post bail not because of their fault but because of their misfortune, — sections [270]*270which allow that such persons forthwith might he questioned, their testimony perpetuated and they discharged. Here, where such benefits were not extended, it might he that the hoard of examiners and the legislature, on proper application, would consider the advisability of making available to the plaintiff a reasonable sum as compensation for time lost and liberty restricted.

The dissent’s quotation from a Maryland case assumes facts which are not reflected in the record here, and any criticism impliedly leveled at public officials in that forum is- not apropos or analogous here, where the record is silent as to whether plaintiff was honest, friendless or the victim of'enforced companionship with the depraved. Whether all or any of these things were true here, it is still a matter for legislative and not judicial legislation.

McDonough, c. j., and crockett and WORTHEN, JJ., concur.

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282 P.2d 838, 3 Utah 2d 268, 50 A.L.R. 2d 1436, 1955 Utah LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-moss-utah-1955.

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