Hancock v. Parker

JUDGE LANDES delivered the opinion oe the court: This is an application to this court by petition of R. A. Hancock, the warden of the penitentiary at Frankfort, as plaintiff, against Watts Parker, the judge of the Fayette Circuit Court, as defendant, praying that the defendant may be prohibited, by the proper writ, from proceeding by rule against the plaintiff for contempt, in refusing to comply with an order made by defendant as judge, requiring the plaintiff to produce in said court a prisoner, who is confined in the said penitentiary for felony, to testify as a witness in behalf of one Ed. Warfield, who has been indicted for the crime of rape. The material question, upon which authority to issue the writ applied for depends, is whether the defendant, as judge of the Fayette Circuit Court, had the jurisdiction or power to require the plaintiff, as warden of the penitentiary, to produce the prisoner in his court to testify, and that question we will proceed to consider. It appears that the prisoner who is wanted as a witness, John Gatlin, was tried and convicted in the Fayette Circuit Court, at the April term, 1896, upon an indictment charging him with the crime of obtaining money under false pretenses, and that he was sentenced [146] to solitary confinement and hard labor in the said penitentiary for a period of two years, and that he was received there on the 16th day of May, 1896. It further appears that on the 16th day of September, 1896, the order referred to was made in the Payette Circuit Court, directing the plaintiff to produce said Gatlin in court on the 19th day of September, 1896, to testify in behalf of said Warfield in the prosecution against him, and that said order was issued because it was made to appear, to the satisfaction of the court, that the said Gatlin was a material witness for the defense. The plaintiff refused to obey the order because he believed in good faith that the court had no jurisdiction in the premises, and because the commissioners of the sinking fund refused to permit the prisoner to be taken out of the penitentiary for that purpose. Gatlin was .not disqualified from testifying in the case by réason of his having been convicted of the crime of obtaining money under false pretenses, or by reason of his being confined in the penitentiary under sentence for said crime. Commonwealth v. McGuire, 84 Ky., 57; Commonwealth v. Minor, 89 Ky., 555. Under section 11 of the Bill of Rights Warfield, who is the subject of a criminal prosecution, has the right not only “to meet the witnesses face to face,” but also “to ’have compulsory process for oUmning witnesses in his favor.” This right, guaranteed to him by the Bill of Rights, can not be denied to him. Chief Justice Marshall in 1 Burr Trial, 158-9; Commonwealth v. Jones, 10 Bush, 746, [147] I-Ie is entitled to have his own witnesses in court, if they can be reached by the compulsory process of the law, and to coerce their attendance whenever they may reside in the State, and, in order to do this, it is not required that he shall tender to his witnesses any compensation for expenses before resorting to process to compel them to attend. Criminal Code, section 151. lie is not bound to waive this right by taking the depositions of his witnesses, and the condition and circumstances of this witness are not such as to allow him to take his deposition, if he wished so to do. Criminal Code, section 153; Kaelin v. Commonwealth, 84 Ky., 355. In addition to this ample authority for requiring the production of this witness, confined in execution of his sentence in the penitentiary, it is provided by section 425 of the Criminal Code, that, in any proper state of case, for the removal from prison of persons convicted for any criminal offense “by writ of habeas corpus or some other legal writ.” It is contended, however, by counsel for the plaintiff that the order in this case ought not to have been made because there is no provision in law for paying the expenses incident to'the production of this witness in the Payette Circuit Court. If this were true,it would not affect the rights of the accused to have compulsory process to secure the attendance of the witness. The Commonwealth has the custody and control of this witness, and the accused cannot reach him except by compulsory process, to which he is entitled under the [148] Bill of .Rights. If there is no provision in the law for paying the expenses in such emergency it should be made by the Legislature, and the want of it is by reason of no fault of the accused; but we hold that it is the duty of the court to ascertain and make allowance for the expenses of such removal and conveyance of this witness, such as are embraced by section 861 of the Kentucky Statutes, and that the same are payable out of the State treasury under the said section. For the reasons given it is the opinion of the court that the plaintiff should comply with the order and produce the witness in court to testify, and compliance with the order will be in discharge of the rule of contempt. The application for the writ of prohibition is, therefore, denied and the petition dismissed.