Comfort v. Kittle

GiveN, J. [182] i. cbihinal witnesses^ statute.zanoe’ [181] I. The power to require persons, without accusation of wrong and without a hearing, to give [182] even their own pledge for their appearance as witnesses, is surely an extraordinary power, and still more extraordinary when security may' be required and imprisonment imposed for a failure to give it. The power to bind witnesses by recognizance to appear and give evidence has long since been conferred upon courts and judges by the statutes of many, if not all, of the states. We are not aware that it has ever been exercised in the absence of statutory authority. It is a familiar rule that when the statute confers authority upon any given subject it is to the exclusion of all other authority than that expressed in the statute. The question before us is whether, under the law and facts, Judge Ladd had authority to make the order under which the petitioner is detained. In the chapter of the Code authorizing changes of venue in criminal cases from one county to another, it is provided in section 4385, that when any prosecution has been transferred, the accused shall give bond for his appearance. “And the court or judge may require all material witnesses, in behalf of the prosecution, to enter into cognizance for their appearance at the district court of the county to which the prosecution is transferred.” This section is an exact transcript of section 4144 of the revision, except that the word “recognizance” is used in the revision, instead of “cognizance,” as in the Code. Lexicographers define cognizance to mean, in law, knowledge or notice; judicial knowledge or jurisdiction ; an acknowledgment or confession, as an acknowledgment of a fine. Recognizance is defined to be, an obligation of record entered into before some court of record or magistrate duly authorized, with condition to do some particular act, as to appear at the same or some other court, to keep the peace or pay a debt. In view of these definitions, and the inapplicability of a cognizance to the evident purposes of the statute, we are satisfied that this change of words occurred by mistake in transcribing the section of the revision, and that section 4385 of the Code should [183] be construed as authorizing courts and judges to require recognizance. _ ' —• order at chambers. II. Some question is made as to whether the case against Cadwells was a criminal prosecution. While it is not so stated in terms, we think it fairly appears from the record that it was a . . , . • criminal prosecution, ana that petitioner was deemed a material witness for the prosecution. The petitioner claims that the order is illegal because made at chambers, distant from Monona county, without notice to him, and without his being heard. The proceeding is summary; no provision is made for notice or hearing. Judge Ladd might make whatever order he had power to make when, where and as this one was made. _ ' bond witt III. The material question is whether Judge Ladd had authority to require the petitioner to execute a bond with sureties, conditioned that he would appear as a witness, and to order that, upon failure, he be arrested and kept in custody. From what we have said, it will be seen that we regard the judge as having authority to require the petitioner to enter into recognizance. There is a difference between a recognizance and a bond. Webster says, “A recognizance differs from a bond, being witnessed by the record only, and not by the parties’ seal.” He defines a bond to be, in law, “ A writing under seal by which a person binds himself, his heirs, executors and administrators.” It is certainly questionable whether authority to require a recognizance confers power to require a bond, and yet, as it cannot be very material to the witness in which form he gives his obligation, we might not hold the order unauthorized merely because a bond instead of a recognizance is required. It is of grave importance to” a witness whether he may be required to give other security than his own promise, and graver still whether for failure, through inability or otherwise, he may be arrested and imprisoned. To require sureties, and to order imprisonment [184] in such oases, is the exercise of an unusual and extraordinary power, and should not be exercised where the authority is doubtful. The authority being conferred by statute, and the statute excluding all authority not conferred by it, we are to look to it alone. The statute quoted is the only one conferring power upon district courts and judges in such cases. There is not the remotest reference therein to either sureties', arrest or imprisonment. Sections 4248 to 4251 of the Code do authorize magistrates, on holding the defendants to answer in the district court on preliminary examination, to take from each material witness examined by him, on the part of the state, a written undertaking for his appearance- in the district court, and, if satisfied that the witness will not fulfill his undertaking, to require him to enter into it with sureties, and, in case of refusal, to copimit him until he comply or be legally discharged. These provisions are expressly limited to preliminary examination before magistrates. If it was intended thereby to confer the same authority upon district judges, in cases of change of venue, there would be no necessity for the provision contained in section 4385 as to witnesses. These provisions being expressly limited to preliminary examinations before magistrates, we are not at liberty to-engraft them upon the other statute, even though there are good reasons why district courts and judges should possess the same authority. The powers being statutory, it is for the legislature alone to say who shall possess them, and to what extent. Much is said as to the necessity of the district courts and judges having power to require witnesses to give surety for their attendance, and the failure to detain them in custody to prevent failure of justice. Such arguments are rather for the lawmaking power than for the courts. Statutes conferring such powers as we are considering are justified by necessity, for without them the enforcement of criminal statutes would frequently fail, but while the necessity justifies the law it does not justify the exercise of these powers in the absence of authority in the law. [185] It is very clear that, taken alone, section 4385 of the Code does not authorize district courts or judges to require sureties from witnesses, nor to order their arrest and imprisonment. In the opinion of a majority of the court such authority in the district courts and judges may not be inferred from the statutes in respect to preliminary examinations, nor from the necessities of the case, and hence that the learned district judge acted without authority in requiring the petitioner to furnish sureties, and in ordering his arrest and detention upon failure so to do. For these reasons the detention of the plaintiff is illegal, and the judgment of the superior court in ordering his release should be affirmed.