# State of Oregon v. Blount, Sr.

> Oregon Supreme Court · November 18, 1953 · 200 Or. 35

URL: https://www.frixlaw.com/law-library/cases/9590032

## Case

- **Full name:** STATE OF OREGON v. BLOUNT, Sr.
- **Court:** Oregon Supreme Court
- **Decided:** November 18, 1953
- **Citations:** 200 Or. 35; 264 P.2d 419; 44 A.L.R. 2d 711; 1953 Ore. LEXIS 298
- **Precedential status:** Published
- **Opinion:** Concurrence by Perry
- **Judges:** Latourette, Perry, Lusk, Rossman, Tooze
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9590032

## Opinion text

PERRY, J.,
specially concurring.
I concur in the result reached in the majority opinion as the trial court did not err in its denial of the motion of the defendant for the postponement of the trial, the showing for that .purpose being wholly insufficient.
However, I am unable to agree with the majority in their construction of the Uniform Act to secure the attendance of witnesses from without the state in criminal proceedings (§§ 26-1816 and 26-1817, OCLA).
*61 If I correctly understand the majority opinion, their holding is to the effect that the court is without authority to make an order for the payment of fees and mileage by the state to procure the attendance of a witness in a sister state either on behalf of the state or the defendant without indulging in judicial legislation. This conclusion is reached upon the basis that the uniform act as written does not provide who shall tender to the witness his “10 cents a mile for each mile by the ordinary travelled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness”, and because §§26-1804 and 26-1805, OCLA, provide only for witnesses at the expense of the state if found within the state.
The majority opinion relies upon and cites the case of State v. Fouquette, 67 Nev 505, 221 P2d 404, 410 , where in reference to the uniform act it was said:
“Although no case directly in point has been found, it is clear that this statute, providing, as it does, that specified sums for fees and mileage shall be paid or tendered to non-resident witnesses summoned to attend and testify in criminal prosecutions in this state, but not providing, either expressly or by implication, that such witnesses summoned on behalf of the defendant shall be brought in without expense to him, does not confer upon the courts of this state authority to procure the attendance and testimony of witnesses from without the state for the defendant in any case at the expense of the public.”
The above statement cites as authority Greene v. Ballard, 174 Ky 808, 192 SW 841 , and other authorities, which when examined are all to the effect that the general rule “seems to be well settled that the *62 constitutional right of defendant in a criminal case to compulsory process to procure the attendance of witnesses in his behalf does not include the right of having them brought into court at public expense”, (Bishop, New Crim Proc § 959b, and cases cited therein, and note 8 LRA NS 509).
This statement would at first glance seem determinative of the issue before us, but in examining the cases pertinent thereto, we discover that this statement as applied, with the exception of State v. Waters, 39 Me 54, means no more than that where no provision has been made for the payment of defendant’s wit. nesses, although they are compelled to attend the trial, they cannot look to the state for payment. Bennett v. Kroth, 37 Kan 235, 15 P 221 ; State v. Graves, 13 Wash 485, 43 P 376 . The obligation still rests upon the defendant to pay his witnesses for the services they have rendered, unless their attendance has prior approval of the trial court. Pittman v. State of Florida, 51 Fla 94, 41 So 385, 8 LRA NS 509; Bennett v. Kroth, supra; State v. Grimes, 7 Wash 445, 35 P 361 .
That the above interpretation is correct is attested to by the statement in Greene v. Ballard, supra, relied upon in the case of State v. Fouquette, supra, which on page 845 reads as follows:
“ ‘A poor person residing in this state may be allowed by a court to prosecute or defend action therein without paying costs, whereupon he shall have any counsel that the court may assign him and from all officers all needful services and process without any fees, except such as may be included in the costs recovered from the opposite party.’
“The exemption from costs allowed by this section to a poor person has been held to apply to a criminal prosecution against such person, and to *63 the right of appeal from a judgment of conviction; but it will be observed that neither in this section nor elsewhere is it provided that the costs incurred by such poor person in the prosecution or defense of his case shall be paid by the commonwealth.”
However, the payment of the witnesses does not become important unless it is necessary to enforce the attendance of a material witness. The specific question at this point, therefore, is: Hoes a defendant under Article I, § 11, of the Constitution of Oregon, have the right to require the advancement of witness fees for the attendance of an out of state witness when only by the advancement of the necessary fees can he compel the attendance of a witness at the trial of an issue? Article I, § 11, reads as follows:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; * * *” (emphasis mine)
We need not go into the abuses practiced under English criminal procedure that led to this constitutional enactment (which provision appears in substantially the same form in the Constitution of the United States and the other states of this Union) as it is self-evident from the enactment thereof that its primary purpose was to avoid abuses that had heretofore been practiced, and that “The right, when guaranteed by constitutional provision, is a real, substantive, and absolute one * * * of which he [a defendant] may not be deprived by the court, jury, *64 or legislature.” (70 CJ 35, 36, Witnesses, §5, and cases cited therein).
In 8 Words and Phrases perm ed 470, “compulsory process”, as used in this declaration of rights, guarantees the accused the right to invoke the aid of law to compel the personal attendance of witnesses at the trial. Greene v. Ballard, supra; Graham, v. State, 50 Ark 161 , 6 SW 721 ; Freeland v. State, 34 Ala App 313, 40 So2d 339. In the command of “due process of law” the “aid of law” to compel personal attendance of witnesses, as I understand it, is the usual and customary means provided within a jurisdiction for bringing a witness before the court in which the proceedings are had under the statutory authority granted that court.
As previously stated, whether or not a witness is paid by the state or some authorized subdivision thereof, or by the defendant, or not at all, is unimportant unless such payment is necessary under the laws of the particular jurisdiction to coerce the witness to attend upon the trial. In fact, were it not for provisions of statute, a witness would not be entitled to any compensation for his services rendered in giving evidence at a criminal trial. Morin v. Multnomah Coumty, 18 Or 163 , 22 P 490 ; Daly v. Multnomah County, 14 Or 20 , 12 P 11 .
Some states provide that one in poverty may cast the burden of payment for the services of his witnesses upon the state by complying with the state’s required regulations; others, regardless of the financial status of the defendant (as in this state) limit in number and as to materiality witnesses for the defendant at the state’s expense. The United States leaves to the discretion of the court the number of *65 witnesses that may be snbpoened by an indigent defendant at the expense of the government, and confines the compulsory attendance of witnesses to the jurisdiction of that court, or 100 miles from the place of trial. United States v. Fore, 38 F supp 142; Crumpton v. United States, 138 US 361 ; Goldsby v. United States, 160 US 70 .
These are wholesome regulations where it is proposed by the defendant, or provided by statute, that this burden of expense is to be placed upon the public treasury, and are held not to violate the due process requirement of the constitution. See State v. Nathaniel, 52 LA Ann 558, 26 So 1008, relied upon by the state; also, note, 8 LRA NS 509.
From the case of Willard v. Santa Barbara County Sup. Ct., 82 Cal 456, 3 Rice on Evidence 270, we read:
‘ ‘ ‘ One further proposition should be stated. . . The state owes equal and exact justice to those under its authority in all proceedings against them. It can have no higher justifiable right as to witnesses than the defendant. Nor should nor does it ask any higher right in this regard. If anything, it should be content with an inferior right. It holds the lists and appoints the president thereof, in which the contest between the people and the defendant on trial is waged. And the defendant might truly say that equal justice has not been done, when the state can compel the attendance of a witness to prove his guilt, and the defendant cannot compel the attendance of a witness in like circumstances to establish his innocence. Justice, as Lord Coke says, should be free, full, and speedy; free, because nothing is more unjust than justice which has to be bought; full, because justice ought not to halt or be maimed; and speedy, because delay is to some extent a denial of justice. See Coke, Inst. pt. 2, p. 55.’ ”
*66 Also, in State v. Grimes, supra, p. 449 , it is stated:
“The constitution guarantees to an accused person the right to have compulsory process to compel the attendance of witnesses in his own behalf, without the advancement of money or fees to secure this right. But it cannot be that the measure of the constitutional requirement would be filled by the mere issuance of a subpoena by the clerk, leaving to the accused the burden of making service and paying fees and mileage. Such a construction would be to give the shadow and withhold the substance; and we think the constitution can only be satisfied by the production of the witness in court without the payment of fees or mileage in advance.”
Speaking on this subject, that eminent jurist Chief Justice Marshall said: “The right of an accused person to the process of the court to compel the attendance of witnesses seems to follow, necessarily, from the right to examine those witnesses; and, wherever the right exists, it would be reasonable that it should he accompanied hy means of rendering it effectual. (emphasis mine) * * * The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial; and they, consequently, allow to the accused the right of preparing the means to secure such a trial. * * * The constitution and laws of the United States will now be considered for the purpose of ascertaining how they bear upon the question. The eighth amendment to the constitution gives to the accused, ‘in all criminal prosecutions, a right to a speedy and public trial, and to compulsory process for obtaining witnesses in his favor.’ The right, given by this article, must he deemed sacred hy the courts, and the article should *67 be so construed as to be something more than a dead letter.” 1 Burr’s Trial, 178 -9. (Italics tbeirs).
The statutes of this state applicable to secure the attendance of witnesses within the jurisdiction of the circuit courts in criminal cases are as follows:
‘ ‘ § 26-1801. Subpoena defined. The process by which the attendance of a witness before a court or magistrate is required is a subpoena.”
“§26-1804. Issuance by district attorney for witnesses at trial. The district attorney may in like manner issue subpoenas for not to exceed five witnesses within the state, in support of an indictment to appear before the court at which it is to be tried; provided, however, that the court or judge thereof may, upon good cause shown, make an order allowing subpoenas to issue for a greater number of witnesses.” (emphasis mine)
“§ 26-1805. Issuance by clerk for witnesses for defendant. The clerk of a court in which a criminal action is pending for trial must at all times, upon the application of the defendant, issue in blank subpoenas, under the seal of the court, and subscribed by him as clerk, for not to exceed five witnesses, within the state, at the expense of the state; provided, however, that the court or judge thereof may, upon good cause shown, make an order allowing subpoenas to issue for a greater number of witnesses; and provided, further, that any defendant may have subpoenas issued for any number of witnesses at his own expense without an order of the court.” (emphasis mine)
“§ 26-1806. Proceeding to obtain subpoenas for more than five witnesses. If either party in a criminal action shall desire more than five witnesses, as in this act above provided, application therefor shall be made to the court or judge thereof by motion for an order directing the clerk to issue subpoenas for such additional witnesses, which motion shall be supported either by the statement of *68 the district attorney in writing, or by the affidavit of the defendant, which statement and affidavit shall state the names of snch witnesses, their places of residence, and the facts expected to be proven by each of them; and if it shall appear from snch statement or affidavit that the witnesses, or either of them, therein named, are necessary and material, the court or judge thereof shall make an order directing the clerk to issue subpoenas for such witnesses, or so many of them as shall appear to he necessary and material to a fair, full, and impartial trial.” (emphasis mine)
It is quite apparent in the reading of these provisions of statute that so far as this state is concerned its policy is a rule of equal justice to all, rich or poor, in the criminal courts; all, including the state, stand upon equal ground. No constitutional or statutory provision is made in this state whereby one in poverty can by the showing of such unfortunate circumstances gain a greater right than one of wealth in obtaining compulsory attendance of witnesses; likewise stands the prosecution (the state); for none have greater rights than the other. All necessary material witnesses are paid by the state.
It must now be noted under the provisions of the above statutes that the right to subpoena under compulsory process and at the expense of the state, both as to the state and the defendant, is limited to “witnesses within the state”, for at the time of the passage of these acts [1864] the territorial jurisdiction of the courts for such a purpose was circumscribed by the boundaries of the state. In 1937 the legislature passed the “Uniform Act to secure attendance of witnesses from without the state”. This act reaches only witnesses whose presence are required in criminal pro *69 ceedings (§26-1815, OCLA). Generally, §26-1816, OCLA, grants to a sister state, operating under this uniform act upon proper procedure and process, the right to compel the compulsory attendance o.f a material witness found within the state of Oregon at the criminal proceedings in that sister state. Section 26-1817, OCLA, generally, provides that the processes of this state, where recognized and acquiesced in by other states, may be used to bring before its criminal courts material witnesses found within a sister state, and provides that in order to compel attendance there shall be tendered to each witness his mileage and other predetermined expenses. Nowhere do we find in the statutes any authorization for the state, on behalf of the state or the defendant, to advance the necessary mileage and other expenses of witnesses required to attend from another state. If this be true, then, unless the general statutes of this state authorize the advancement of fees to witnesses beyond its borders, § 26-1817, OCLA, is for all intents and purposes a nullity. Section 26-1817, supra, reads as follows:
“If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the county stating these facts and speci-' fying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certifi *70 cate shall he presented to a judge of a court of record in the county in which the witness is found.
“If the witness is summoned to attend and testify in this state he shall be tendered the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state. ’ ’
No one would contend that the legislature in passing the act was making idle gesture. It was attempting by agreement with sister states to extend the previously circumscribed limits of its powers of compulsory subpoena in the interest of ascertaining the truth or falsity of a criminal assertion; and it is to be noted that the state itself has fixed the payment to be made or tendered and the provisions that there can be no coercion of the witness if fees are not paid or tendered.
While the statute itself does not say who shall advance the fees, little is the doubt that this court, or any court, would say that, should the state require the attendance of a witness on behalf of the prosecution, this statute implied the state could advance the fees it has required to be paid. Yet the statute in relation to the rights of prosecuting attorneys to subpoena witnesses (§ 26-1804, supra) provides for the issuance of subpoenas only for witnesses within the *71 state, leaving to the discretion of the court payment or non-payment of witness fees to such witnesses as come from beyond the boundaries of the state (■§ 26-1816, supra, cited in the majority opinion). In my opinion the use of the words “within the state” in §§ 26-1804 and 26-1805, supra, means no more than “within the power of the court to coerce attendance” and should be so construed.
The power of compulsory process having been extended beyond the borders of the state in compact with sister states by legislative enactment should not be permitted to fail of its purpose. The stated policy of this state as expressed by the legislature granting to all the equal protection of its laws includes the payment of fees of material witnesses, “or so many of them as shall appear to be necessary and material to an impartial trial”.
As expressed by Justice Cardozo in Van Beeck v. Sabine Towing Co., 300 US 342 , 81 L ed 685, 57 S Ct 452 :
“* * * It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system.”
But should such a construction as I have placed upon the words “within the state” be disregarded, still § 26-1817, supra, is an act designed by the legislature to permit a trial court to act in the furtherance of justice. Whenever by any party it is called to the attention of the trial court in proper manner that a person beyond the borders of the state is a material *72 witness in a case and is by the court found to be such, then the court is empowered to act. The determination of materiality is for the court, but when that issue is once determined, it is the process and order of the court that is being executed, including the “recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state”.
In 21 CJS 136, Courts, §88, it is stated:
“While a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, * # *”
Had the legislature intended that the processes of the court must be carried out by the party requesting the process, it would have so provided; its silence upon the matter, after having required payment in advance to a witness in order to enforce its demands, is significant. In view of the stated policy affecting witnesses in criminal actions, “a statutory grant of a power or right carries with it, by implication, everything necessary to carry out the power or right and make it effectual and complete, * * *.” 82 CJS 633, Statutes, § 327.
For the above reasons I cannot concur fully in the majority opinion.
*73 Charles O. Porter, of Eugene, and Ulysses G. Plummer, Jr., of Portland, for the petitions.
C. E. Luckey, District Attorney for Lane County, and W. Keith Rodman, Deputy District Attorney for Lane County, of Eugene, contra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9590032. Public record. Not legal advice.