
    State v. Reinhart.
    
      (Nashville.
    
    February 22, 1893.)
    1. Costs. Of attachment proceedings for witnssses in criminal cases, how> taxed.
    
    The costs of attachment proceedings had in a criminal case to compelí attendance of witnesses, if not adjudged against the witnesses, are: taxable as costs of the cause in which the witnesses were required totes tify.
    Code construed: § 6453 (M. & V.); § $577 (T. & S.).
    2. Same. Same.
    
    And the defendant is liable, upon conviction, for costs incurred by reason of attachments for State witnesses, when the witnesses 'are exonerated from payment of costs.
    EROM MONTGOMERY.
    Appeal from the Criminal Court of Montgomery County. C. W. Tylek, J.
    Attorney-general Pickle for State.
    ¥m. M. Daniel for Defendant.
   Lurton, C. J.

The defendant was convicted of horse-stealing. Certain witnesses for the State, and others for the defendant, were duly subpoenaed to appear and testify. They failed to obey the process of the Court. Thereupon, an order was entered,, reciting that they were “ under subpoena as witnesses in this case,” and that they had willfully failed to appear, and “that attachments issue for them, and that they be brought into Court to testify, and be held in custody until they appear and testify.” Attachments did accordingly issue, and the recalcitrant witnesses were arrested and brought into Court.

The record then recites that these witnesses did appear and testify under the attachments, “ and that the Court being satisfied that, by reason of high water, they were unable to attend and testify yesterday, as summoned, it is ordered by the Court that they be discharged from custody.”

The Court thereupon ordered that all the costs incident to the attachments be taxed against the defendant, “ as part of the costs in this cause.” It is now insisted that this was error, and that the costs incident to a proceeding by attachment against a witness is not properly costs of the cause in which he was summoned, but is costs in a separate and distinct proceeding, in the name of the State and against the witness, and should be taxed in the contempt proceedings. 'When a witness has been duly summoned, he is bound to appear in pursuance of the subpoena; and if he willfully neglects to. appear, he is guilty of a contempt of the process of the Court, and may be proceeded against by an attachment. 1 G-reenleaf on Evidence, See. 319.

This author says:

“ It has sometimes been held necessary that the ■cause should be called on for trial, the jury sworn, .and the witness called to testify; but the better opinion is that the witness is to be deemed guilty ■of contempt whenever it is distinctly shown that he is absent from Court with intent to disobey the writ of subpoena, and that the calling of hi ip in Court is of no other use than to obtain •clear evidence of his having neglected to appear; but that is not necessary if it can .be clearly •shown by other means that he has disobeyed the •order of the Court.” Supra, Sec. 319.

Code (M. & V.), § 4881, embodies this common law proceeding, and makes the willful disobedience ■“ of any lawful writ, process, order, .rule, decree, or command” of a Court a contempt, and authorizes the issue of an attachment for the offender.

In Caruthers’ History of a Lawsuit it is said: ■“ If the witness willfully fails to attend, it is a •contempt of Court, and the party may have an .attachment forthwith to bring him in, without any previous rule on him to show cause. * * * The Court must have satisfactory evidence of the willfulness of his absence — usually the affidavit of the party — to warrant an attachment.” Sec. 307, •old edition.

This remedy does not proceed upon the ground •of any damages sustained by the party moving for the attachment, but is instituted to vindicate the dignity of the Court. 1 Greenleaf on Evidence, Sec. 319.

A witness failing to attend is liable to the party summoning Mm for all damages sustained by reason of Ms failure to appear and testify. In, a -civil case lie is also liable to forfeit tbe sum of $125, to be recovered by scire facias. Code (M. & V.), § 4574. In a criminal case tbe same remedy exists, tbe penalty for failure to attend being increased to $250. Code (M. & V.) § 4575.

Reitber of these remedies — tbe forfeiture of a penalty and tbe action for damages — may result in bringing tbe witness to testify in tbe particular case. They are tbe private remedies of the parties injured by non-attendance. Tbe dignity of the’ Court is not vindicated by resort to them, nor is the testimony elicited. Tbe attachment is resorted to in the case in which tbe contempt was committed, and for tbe double purpose of securing tbe evidence of tbe disobedient witness and to vindicate tbe Court. It is a proceeding incident to the principal cause, and the expense incident may properly be taxed as a part of tbe costs of tbe cause. Tbe issuing of these attachments were but an incident to tbe trial of the defendant,, and were necessary that tbe trial might proceed. Tbe defendant was entitled, under the Constitution, to compulsory process for Ms witnesses, and tbe cost incident to such right is clearly costs in the cause. These costs might have been taxed to the disobedient witnesses, but when they purged -themselves of contempt the costs properly became costs in the cause.

Section 6453, Code (M. & V.), provides that “the costs which may he adjudged in criminal cases include all costs incident to the arrest and safe - keeping of the defendant before and after conviction, due and incident to the prosecution and conviction, and incident to the carrying of the judgment or sentence into effect.”

Under this provision, we think there was no error in taxing the costs incident to the attachment proceedings as costs of the cause.

Judgment- affirmed.  