Delano v. Board of County Commissioners

MORGAN, J. (After Stating the Facts). — The principal question brought to this court is, Could the judge, upon the presentation of the foregoing affidavit at chambers, as district judge, make the order directing the issuance of a subpoena summoning said witnesses? Section 8151 of the Revised Statutes of Idaho contained no provision for the pay of defendant’s witnesses in criminal eases, as originally drawn. The section was [87] amended (2d Sess. Laws, p. 20) by the addition of the following provisions: That, when a defendant in a criminal proceeding requires the attendance of more than five witnesses in his behalf, before such witnesses shall be subpoenaed at the county expense, or their fees and mileage be a charge against the county, such defendant must make an affidavit setting forth that they are witnesses whose evidence is material to his defense, and that he cannot safely go to trial without them. In such case the court shall order a subpoena to issue for such of said witnesses as the court may deem material for the defendant, and the costs incurred by the process, and the fees and mileage of such witnesses, shall be paid in the same manner that costs and fees of other witnesses are paid. It will be noticed that the statute provides that the court shall order a subpoena to issue for such witnesses as the court shall deem material. No power is given the judge, by this or any other section, to make such order; and it would seem to be with good reason, as these fees become a county charge, without the county, through their officers, having anything to say in the matter. Courts can exercise judicial functions only at such times and places as are fixed by law, and judges of courts can enter no order in vacation, except such as are expressly authorized by statute. (12 Am. & Eng. Ency. of Law, 14.) Such business as may be transacted out of court is exceptional, and must find its warrant in some express provisions of the statute. (Larco v. Casaneuava, 30 Cal. 561; Norwood v. Kenfield, 34 Cal. 329; Loomis v. Andrews, 49 Cal. 239.) The judge at chambers not being authorized by law to make the order for witnesses for defendant above set forth, said order is illegal and void, and cannot be made a basis for compelling the county to pay the fees of such witnesses. The statute (2d Sess. Laws, sec. 8151, as amended) provides that in such cases the court shall order a subpoena to issue for such witnesses as the court may deem material for the defendant, etc. It is evident, therefore, from this reading of the statute, that the court must exercise its judgment as to the materiality of witnesses. How shall this be done, if the affidavit simply states they are material to his defense, without stating facts which show to the court that such witnesses are material ? The court [88] evidently could and should require that the defendant should state in his affidavit what he expects to prove by the witnesses. Then the court should judge as to the necessity for summoning them. This would prevent the summoning of a large number of witnesses who were not needed in the trial, and save unnecessary expense. Judgment of the lower court reversed-Costs awarded to appellant. Huston, C. J., and Sullivan, J., concur.