
    William H. Ried, plaintiff in error, v. The State of Nebraska, defendant in error.
    Witness Fees. The fees of a witness from another state, coming into this state in obedience to a subpoena issued on behalf of the state in a prosecution for a felony, and where the testimony of such witness is material and necessary, are taxable to a defendant where the prosecution results in a conviction of the defendant of the crime for the commission of which the prosecution was instituted.
    Ereoe to the district court for Gage county. Heard below before Beoady, J.
    
      L. W. Qolby and Hazlett & Bates, for plaintiff in error.
    
      William Leese, Attorney General, for the state.
   Reese, J.

It is agreed by counsel that there is but one question presented in this case, and that is, whether the state is entitled to a judgment against a defendant, convicted of a felony, for the cost of witnesses necessarily brought or who accept service of subpoena and come from another state. The question of the materiality of the testimony or the necessity of bringing witnesses from a long distance is always for the trial court; and while a party securing the attendance of a witness from a long or short distance must always pay the legal fees therefor, yet, for the protection of litigants and defendants in state cases, it is the province of the court in proper cases to refuse to tax such costs to the losing party.

The question here is, not whether the witnesses are entitled to their fees — for they clearly are — from the party calling them. Any other holding would be a suggestion •of the practice of a species of bad faith, which the courts would not for a moment sanction. In the case at bar the state officer sent subpoenas to the witnesses in Iowa, and upon his request the witnesses accepted service and came in obedience to the requirements thereof. The state, or' rather that part of it represented by the county whére the crime is alleged to have been committed, must pay them their full fees for the whole distance necessarily traveled.”’ Sec. 23, chap. 28, Compiled Statutes, 1885.

Assuming, as we must, that these witnesses were necessary and that their testimony was material, as these facts-are not questioned, we are of the unanimous opinion that the state is entitled to the taxation of these costs. Without inquiring what the rule might be in a civil case where-depositions might be taken, it is clear that the only method by which the testimony might have been used on the part of the state under the provisions of the constitution, would be by the production of the witnesses in court. While the-state might not be able to compel their attendance, yet if they saw fit to yield obedience to its request in the form of' a subpoena, we can see no possible reason why they should not be treated as any other witness, and their fees, necessarily paid by the state, taxed accordingly. Hutchins v. The State, 8 Mo., 288.

The judgment of the district court is affirmed.

JUDGMENT' AFFIRMED.

.The other judges concur.  