Nicolas v. Trickey

19 Ala. 92

• Court: Supreme Court of Alabama
• Decided: January 15, 1851
• Status: Published

Opinion

PARSONS, J.

It is only necessary to decide tbe question, ■whether a Vitness for tbe State, in a prosecution against a party, can bring suit on his certificate of attendance, against tbe defendant, after his conviction. In civil cases a witness may bring such a suit against tbe party in whose behalf be was a witness, even after tbe trial and judgment. — Hill & Proctor v. White, 1 Ala. 577.

In State cases, it is obvious that a witness for tbe State cannot bring suit for bis attendance against the defendant before bis conviction; after tbe conviction, tbe defendant becomes liable to the witness for his attendance. The act is, that u all witnesses, appearing in behalf of tbe State, in any criminal prosecution, shall be allowed tbe same compensation for their daily attendance, as is allowed to witnesses attending upon civil prosecutions ; and such fees for attendance,, together with all costs, of the prosecution, shall be paid by tbe defendant upon conviction, &c.”- — day’s Dig. 600, § 7.

In our practice tbe judgment goes in tbe name of the State against tbe defendant for the costs, though they are not ascertained by tbe judgment itself, but are to be taxed by the clerk, and may be collected by execution. In this manner the costs due to the witnesses are taxed, and when collected, are paid to the witnesses. The statute already cited contains a further provision in cases where the defendant is convicted, that in case the defendant shall not be able to pay costs, the clerk of the court shall grant a certificate of attendance for the witnesses of the State, in the manner that tickets are granted to the jurors, which are to be received by the sheriffs in payment of public dues, &c. By another act, the lands, goods, &c. of the person convicted, are to be liable to the discharge of the expenses incurred by the State or county, in the prosecution, in preference to. all other demands, except dower and jointpre. — Clay’s Dig. 482,'§ 36. There is no-statute which, in criminal cases, gives a witness for the State a right of action against the defendant., The omission, I think, was intended. His claim against the defendant does not accrue until the moment of, and is merged in the judgment, and it is the judgment that gives the right. This view will prevent a multiplicity of unnecessary suits by the different witnesses against the defendant; and their rights and the rights of the public are most advanced by giving to the judgment this effect. Thus it can be ascertained by the return of a single execution, whether the witnesses are to be paid out of the public dues, and in the event of such a payment, the entire amount for which a preference is secured to the State by the act is to be ascertained by the taxation of the costs, instead of having to go to the different judgments recovered by the witnesses before justices of the peace, in which there must necessarily be new bills of cost.

There are distinctions, which will appear form what has been said, between this case and that of Hill & Proctor v. White. The judgment is reversed.