Dutcher v. Justices of the Inferior Court

38 Ga. 214

• Court: Supreme Court of Georgia
• Decided: December 15, 1868
• Status: Published

Opinion

McCay, J.

Section 3792 of the Code is in. these words:

“ Witnesses for the State, in a criminal prosecution in the Superior Courts, attending in a different county from that of their residence, shall receive $2 00 per day during their attendance, and $2 00 for each thirty miles traveled in going and returning, which shall be paid,” etc.

Judge Collier held, in this case, that the law would permit a payment of mileage, to and from the State line, but not further. We see no reason for the restriction. The reason of the law is certainly in favor of the payment from and to his residence, wherever that may be.

As a matter of public policy, it is important that witnesses should be encouraged to appear, and there ,is nothing in the Act expressly confining it to persons resident in the State. They have a public duty to perform, but a citizen of another State owes no such obligation. He happens here, and whilst here, becomes a witness to a violation of our laws. He is subpoenaed whilst here. If permitted to leave, he is under no obligation to return. If kept here by force, which, perhaps, the State might do, it would certainly be at her expense.

The better policy, and there is nothing in the law to the contrary, is to pay him for coming and going.

This gentleman, as it appears, has, in good faith, made a long journey, perhaps much to his own inconvenience, for the benefit of the county of Eulton, and as the spirit and reason of the statute, not to say its express words, gave him mileage, we think it was error not to have allowed it.

Judgment reversed.