State v. Stewart, 4 N.C. 524, 1 Car. L. Rep. 524 (1814)

April 1814 · Supreme Court of North Carolina

4 N.C. 524, 1 Car. L. Rep. 524

State v. Stewart.

This indictment was found at October Term, A. D. 1813, at which time one Jacob Jackson was bound in this Court in a recognizance in £50, to appear at this term as a witness in behalf of the State, in this case. The said Jackson then resided in Guilford County, at the distance of twelve miles from the Court-house — but had prepared to remove, and, shortly thereafter, did remove himself and family to the State of Tennessee, where he now resides, at the distance of three hundred miles from Guilford Court-house. Along the road usually, and, by the said Jackson, actually travelled, from his place of residence to the said Court-house, the distance within this State, is one hundred miles. At this term the said cause came on to be tried, and the said Jackson, as he was bound, attended as a witness in it, in behalf of the State; when the said defendant, R. Stewart, submitted, and was fined ten shillings. The said Jackson applied for a Witness Ticket, in which he charged mileage for the whole distance between Guilford Court-house arid his present place of residence.

Lowrie, J.

delivered the opinion of the Court.

Our acts of Assembly, in allowing witnesses pay for attending on behalf of the State, are remedial, and ought to receive a liberal construction. By the act of 1777, C. 2, §43, witnesses were compelled to attend the Courts, when summoned on criminal prosecutions, until discharged, under a heavy penalty, and that without any compensation. In the year 1779 the first provision was made for the payment of State witnesses. In 1783 mileage was first allowed to witnesses attending in civil suits, which by the act of 1800, C. 17, was extended to witnesses summoned, or recognized to appear, on behalf of the State, in the Superior Courts, The words of the act of 1783, allowing mileage to witnesses, are very broad, and, we think, sufficiently so, to embrace the case of the witness under consideration. The allowance is, “ for every 30 miles travel going to, and returning from the said Court, the sum of,” &c.

There can be no question but these words would entitle the witness to mileage from the place of his residence, if, after he had been summoned, or recognized, he had removed to any other place within the State, however great the increased distance might have been. If the reason of this is sought for, it will be found to be in the obligation which attaches upon the witness, upon the service of process, or the entering into recognizance, and which, removing from one place of residence to another, cannot discharge him from. And the obligation will remain the same, whether he moves from One part of the State to another place within the same State, or to another State — in either case, he being; once bound to attend, he will incur the penalty of the law, if he fails to do so.

The serving a writ or summons, or binding a man in recognizance, to attend on a Court to give testimony, lays him under no obligation not to change his place of residence, nor will his doing so weaken his claim for compensation :

We are, therefore, all of opinion that the witness in this case, is entitled to mileage to and from the place of his residence, in the State of Tennessee.