Walker v. Boyle

This is a proceeding in mandamus to compel the respondent, Thomas F. Boyle, as auditor of the city and county of San Francisco, to draw his warrant upon the treasury of said city and county, pursuant to an order of court made for the payment of expenses necessarily and reasonably incurred by petitioner as a witness on behalf of the prosecution in a criminal action heard and determined in the superior court of said city and county.

It appears that the defendant in said criminal action, while in the employ of a bank in San Francisco, embezzled certain American Express Company’s Travelers’ checks which later he converted into cash in New York City. The testimony of the petitioner herein, Harry Walker, who cashed said checks in the city of New York became indispensable at the trial of said action in order that the defendant might be identified as being the person who presented said checks for payment. The importance of having said witness present to testify at the trial was brought to the attention of the court in which said action was pending by the assistant district attorney and the bank’s attorney, the latter being associated with the district attorney in the prosecution of said action. In response the judge of said court directed that said witness be produced at said trial. The attorney for the bank then communicated with Walker, requested him to proceed to San Francisco and represented to him that his traveling and other necessary expenses as a witness would be paid in said action. Walker complied with said request, came to San Francisco, and after testifying in said action, presented a claim for expenses in the total sum of $389.68. The court thereupon made and signed the following order: “In this cause, it appearing to the Court that Harry Walker has come into this City and County from New York, State of New York by virute of a Subpoena duly and legally issued by said Court and duly and legally served upon him, in the above entitled proceeding, and has attended before this Court as a witness on behalf of the Prosecution in the above entitled proceeding, now agreeably to the provisions of Section 1329 of the Penal Code of this State, it is ordered

It is admitted that no subpoena was ever issued or served upon petitioner, and also that no affidavit was made pursuant to the provisions of section 1330 of the Penal Code to require the attendance of said witness. Said section 1330 in this respect provides that “no person is obliged to attend as a witness before a court . . . out of the county in which the witness resides . . . unless the judge of the court in which the offense is triable ... or a judge of the superior court, upon affidavit of the district attorney or prosecutor, . . . stating he believes the evidence of the witness is material, and his attendance at the . . . trial necessary, shall endorse on the subpoena an order for the attendance of the witness.”

The claim of petitioner for expenses is based primarily upon the following code section: “When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of an undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its discretion, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the judge, at his discretion, by a written order, may direct the county auditor to draw his warrant upon the county treasurer in favor of witness for a reasonable sum, to be specified in the order, for the necessary expenses of the witness” (Pen. Code, sec. 1329). In connection with that section might be read a portion of section 4300g of the Political Code, although probably not material because that section has not been cited by counsel on either side. It is as follows: “Witness’ fees, except as in this title otherwise provided: For each day’s actual attendance, when legally required to attend upon the superior court, per day, two dollars in civil cases and one

[1] Petitioner contends that inasmuch as that portion of said section 1329 of the Penal Code which declares that the court may allow the payment of the reasonable and necessary expenses of a witness when “it appears that he has come from a place outside of the county,” a witness who has come from any point “outside of the county”—whether from another county in the state, or from another state, or another country, or from across the seas—is entitled to an allowance for expenses, at the discretion of the court in which the action is tried. It will be noted, however, that at the beginning of said section a qualifying clause is employed which apparently constitutes the foundation for the exercise of the court’s power to allow witness’ expenses in the cases therein provided. It reads: “When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of an undertaking, and it appears that he has come from a place outside of the county ...” the court, in its discretion, may make certain allowances for expenses. (Emphasis ours.) It will also be observed that said qualifying clause is used conjunctively and is so connected with the remainder of said section that it necessarily limits the operation of said section to those persons who attend as witnesses “upon a subpoena or in pursuance of an undertaking.” Applying said qualifying clause to the facts of the instant proceeding petitioner is clearly not entitled to an allowance for expenses for the reason that, although he came from outside of the county, he did not attend before the court “upon a subpoena or in pursuance of an undertaking,” having come voluntarily from the state of New York, wherein, it is conceded, the process of subpoena issued by a court in this state has no territorial force or effect. Therefore, unless the plain language of said qualifying clause is wholly ignored and the remainder of said section be given universal appliea

[2] Petitioner makes the further contention that inasmuch as a defendant in a criminal action is entitled to be confronted with the witnesses against him, it becomes a matter of public policy to encourage the attendance of the state’s witnesses from foreign jurisdictions, when their testimony is essential to the enforcement of criminal laws; that, therefore, independent of statutory authority, and aside from the question of whether valid service of a subpoena may be made, if a person, in response to the request made by the court, voluntarily and in good faith, goes from a jurisdiction wherein the process of such court is ineffective to the place of trial, to testify for the prosecution, he is entitled to be compensated for the reasonable expenses incurred by him in so doing. In support of such contention petitioner cites the eases of Climie v. Appanoose Co., 125 Iowa, 292 [ 101 N. W. 98 ] ; Westfall v. Madison Co., 62 Iowa, 427 [ 17 N. W. 614 ]; Dutcher v. Justice, 38 Ga. 214 ; Albany v. Derby, 30 Vt. 718 . The wisdom of the policy declared in the authorities just cited cannot be denied, but the legislature of this state has provided a law to meet just such emergencies by the enactment of subdivision 2 of section 4307 of the Political Code which is as follows: “County charges. The following are county charges: 1. Charges incurred against the county by virtue of any of the provisions of this act. 2. The traveling and other personal expenses of the district attorney, incurred in criminal cases arising in the county,

It would therefore seem clear that petitioner may not be denied reimbursement for the reasonable and necessary expenses incurred by him in attending as a witness in said criminal action, provided the method prescribed by law for the payment of those expenses be followed.

In view of the conclusion reached upon the main questions involved herein, it is not necessary to discuss or decide the other points urged by respondent in opposition to the granting of the petition herein. The alternative writ heretofore issued is discharged and the peremptory writ prayed for is denied.

Tyler, P. J., and Cashin, J., concurred.

An application by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 7, 1926.