PART II.

THE INSTRUMENTALITIES OF EVIDENCE.

CHAPTER XXVIII.

SECURING THE ATTENDANCE OF WITNESSES.

§187. Subpoena, the Term Defined by Bouvier.

188. Constitutional Guaranties to the Right to this Process. 189. Characteristics of the Writ.

190. United States Revised Statutes on the Subject.

191. Comments on the Writ.

192. Views of Mr. Justice Thornton.

193. Code Provisions on the Subject.

a. Tennessee.

b. Minnesota.

c. California.

194. Writ of Habeas Corpus may Issue when?

§ 187. Subpœna, the Term Defined by Bouvier.-Subpoena is "A process to cause a witness to appear and give testimony, commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is usually called a subpoena ad testificandum. On proof of service of a subpoena upon the witness, and that he is material, an attachment may be issued against him for a contempt, if he neglect to attend as commanded."

Subpoena duces tecum is a writ or process of the same kind as the subpoena ad testificandum, including a clause requiring the witness to bring with him and produce to the court, books, papers, etc., in his hands, tending to elucidate the matter in issue. 3 Bl. Com. 382; Bouvier, Law Dict. title Subpoena.

Briefly, it is "the process by which the attendance of a witness. before a court or magistrate is required." N. Y. Code Crim. Proc. 607.

It is the duty of the clerk of the court at which the indictment is to be tried to issue without charge as many subpoenas as may be necessary. New York Code Crim. Proc. 611. See also Sherwin v. People, 100 N. Y. 351.

§ 188. Constitutional Guaranties to the Right to this Process.-The constitution of the United States, and the constitutions, or statutes, of the several states, secure to the accused the right to compulsory process for obtaining witnesses in his behalf. An application may be made during the trial. This provision has been interpreted to mean that the accused shall not be debarred the right of issuing subpœnaes for his witnesses, as in civil cases, and not to entitle him, on application, to a decree of the court for an allowance to secure their attendance. The court may direct an officer to serve such process for a pauper defendant. Abbott, Trial Brief, §§ 204–206.

The constitutional provision referred to reads as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." Desty, Fed. Const. Amendments, art. 6.

§ 189. Characteristics of the Writ.-Where a witness cannot be trusted to voluntarily appear, he may be compelled to enter into a recognizance for his appearance, in default of which he may be committed until the time of his examination arrives. See United States v. Butler, 1 Cranch, C. C. 422; Ex parte Shaw, 61 Cal. 58; Bickley v. Com. 2 J. J. Marsh. 572; State v. Grace, 18 Minn. 398; State v. Zellers, 7 N. J. L. 265; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640. Where the witness is required to bring books or papers with him, a subpœna duces tecum should be served. See Waring v. Warren, 1 Johns. 340; Ex parte Jaynes, 70 Cal. 638. Under some circumstances a bench warrant will issue to enforce the attendance of a witness, who, having been duly subpoenaed, fails to appear when called to testify. See People v. Marseiler, 70 Cal. 98; Rapalje, Crim. Proc. § 289.

Disobedience to a subpoena, or a refusal to be sworn or to tes

tify, may be punished by the court or magistrate as for a criminal contempt.

Until a witness not attending under a subpoena shall have been brought before the court or magistrate issuing such subpoena, he is liable only civilly, not criminally. Reg. v. Rendle, 11 Cox, C. C. 209; Ex parte Langdon, 25 Vt. 682; State v. Matthews, 37 N. H. 450; N. Y. Code Crim. Proc. § 619; N. Y. Code Civ. Proc. § 853; Com. v. Newton, 1 Grant, Cas. 454; People v. Nevins, 1 Hill, 158; Mack v. People, 82 N. Y. 236. No man can be proceeded against for a criminal contempt arising from his alleged disobedience of a subpoena until after he shall have been given the opportunity to explain to the court issuing the subpœna, his ambiguous act. People v. Few, 2 Johns. 290; People v. Van Wyck, 2 Cai. 334; Reg. v. Russell, 7 Dow. P. C. 693; 1 Gabbett, Crim. Law, 287; Reg. v. Lefroy, L. R. 8 Q. B. 134; 2 Bishop, Crim. Law, § 268; Whart. Crim. Pl. & Pr. [8th ed.] § 968; State v. Nixon, Wright (Ohio) 763; McConnell v. State, 46 Ind. 298; Whitten v. State, 36 Ind. 211-213; Pitt v. Davison, 37 N. Y. 239; People v. Wilson, 64 Ill. 205, 16 Am. Rep. 528; Scholes v. Hilton, 10 Mees. & W. 15.

§ 190. United States Revised Statutes on the Subject.— Witnesses who are required to attend any term of the circuit or district court on the part of the United States, shall be subpœnaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. U. S. Rev. Stat. § 877.

191. Comments on the Writ.-Witnesses so subpoenaed may be required to enter into a recognizance conditioned upon their due appearance before the trial court; and upon their refusal, they may be committed and held in custody until the trial. See Greenl. Ev. § 313. It may well be doubted, whether this method of securing evidence, even in an important criminal case does not infringe both constitutional and common law rights, especially in that large class of cases where it does not appear that there is the least intention on the part of the witness to evade the responsibilities of the witness box.

The case of the United States v. Lloyd, 4 Blatchf. 427, furnishes instructive reading upon this subject. Mr. Justice Betts in com

menting upon this pitiable condition of a witness, says: "This case illustrates some of the manifold hardships and inequities to which witnesses are liable, under the authority and administration of the laws which subject them, in criminal cases, to be imprisoned in close confinement at the discretion, in a good measure, of public prosecutors, to await a summons into court to testify on behalf of the United States. These laws afford no exemption for the aged, or the feeble, or those who, from infirmities of body or mind, are dependent on the attention and the services of others, or who must be separated, by such arrest or detention, from the most stringent calls of their own business, or from supplying help or solace to their families or friends, in the extremest exigencies of sickness or destitution."

There is a disposition on the part of the American judiciary to insist upon the actual confinement of witnesses only in cases where it appears that there is a design on his part not to attend the trial and give his evidence. The Minnesota supreme court so held in the case of State v. Grace, 18 Minn. 398, in which the Chief Justice says: "But though the witness may be required to recognize in the discretion of the court, the discretion (or judgment) here spoken of must, as in all other like cases, be intended to be a sound legal discretion. The judgment of the court cannot be capriciously exercised. It cannot legally abuse its discretion, nor, indeed, is it to be presumed that it will, if, for instance, it will be unjust or oppressive, and against common law and common right, as it certainly would be (Evans v. Rees, 12 Ad. & El. 55; 1 Greenl. Ev. 313; 1 Burn, Justice (24th ed.) 1013; 1 Archb. Crim. Pr. & Pl. 48) to commit such material witness in default of bail, without any proof that he had any intention of not appearing and testifying when duly subpoenaed, but who is too poor to render his recognizance of any value, or too friendless to be able to give bail."

The judicial "discretion" here spoken of has been further defined to be "the exercise of final judgment by the court in the decision of such questions of fact as, from their nature and the circumstances of the case, come peculiarly within the province of the presiding judge to determine." Bundy v. Hyde, 50 N. H. 116, 120. "Judicial discretion, in its technical, legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland, 52 N. H. 401, 408. Roscoe, Crim. Ev. (7th ed.) 95; State v. Lapage, 57 N. H. 245.

"Where there is a witness residing in another district, the process of the court goes to that district. It is issued to the marshall of that district, and it is the duty of the person to whom it is addressed, if he has the means, to travel here to give his testimony. If he has not, the proper officer of the Government will furnish him with means. It is not necessary, if he has the means, that the fees should be tendered to him before he is required to obey the process. An attachment would issue and the court would punish a man who could pay his expenses and would not come because the money was not tendered. It is only where a man has not the means of paying his expenses, that it is necessary for the money to be tendered to the witness in order to make it incumbent on him to obey the process of the court.

. Those witnesses who have not the means of attending court must be furnished with the means when the subpoena is served, and if there is doubt entertained of their being present at the trial they must be compelled to give security; if they fail to do so, they must be held in custody until the trial." United States v. Durling, 4 Biss. 509; Ex parte Shaw, 61 Cal. 58; State v. Zellers, 7 N. J. L. 220; United States v. Butler, 1 Cranch, C. C. 422; Bickley v. Com. 2 J. J. Marsh. 572; State v. Walsh, 3 N. J. L. J. 119; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640; State v. Grace, 18 Minn. 398.

§ 192. Views of Mr. Justice Thornton.-The serious position that an indictment compels the accused to occupy, forces upon our consideration a very grave question connected with the right of a person so circumstanced, to demand the production of certain evidence, or to compel the attendance of certain parties who are the custodians of information, and may operate in his favor. The student of constitutional law is doubtless familiar with that proviso, that we find embodied in the organic law of nearly every state, which guarantees to the humblest citizen, the right to have the process of the courts set in motion to compel the attendance of witnesses on his behalf. He has the same right to this process that he has to appear and defend in person and with counselboth are the inseparable concomitants of American citizenship, immutable guarantees that survive all individual disaster and control the solemnities of judicial proceeding.

If it be objected that this statement is a truism within the knowledge of the most nascent intelligence I will only remark,