Courts; Costs; Witnesses; Worthless Checks

Subject:

Courts; Costs; Witnesses; Worthless Checks; G.S. 7A-314; G.S. 14-107(5) as Enacted by Chapter 837, Session Laws of 1979.

Requested By:

Honorable John S. Gardner Chief District Court Judge 704 W. 27th St. Lumberton, N.C. 28358

Questions:

1. In a worthless check prosecution pursuant to G.S. 14-107 where the defendant pays the worthless check and court costs to the magistrate before the date of trial, and the prosecuting witness is not present before the magistrate, should the prosecuting witness be paid the witness fee under G.S. 14-107(5)? Should the fee be included in the bill of cost?

2. If on the date of trial, the defendant pleads guilty, and the prosecuting witness is not present in court and does not testify, would the prosecuting witness be entitled to the witness fee under G.S. 14-107(5) and should it be taxed as costs?

Conclusion:

1. No.

2. No.

In its strict legal sense, the word "witness" means one who gives evidence in a cause before the court. 97 CJS 350.

The right of a witness to compensation is purely statutory, and the court’s power to tax costs is entirely dependent upon statutory authorization. State v. Johnston, 282 N.C. 1.

The right to tax costs did not exist at common law. Costs are penal in nature and statutes relating to costs are strictly construed. City of Charlott v. McNeely, 281 N.C. 692.

In McNelly, supra, the Court held that a party who testified for himself was not entitled to a witness fee.

The general rule seems to be that a witness must be in actual attendance on the Court to be entitled to compensation, but he need not be called to testify.

Likewise, the rule is that in order to tax the other party for plaintiff’s witness fees, the plaintiff’s witnesses must be under subpoena, and must be examined or tendered. Johnson, supra.

G.S. 7A-314 provides that a witness under subpoena, bound over or recognized to testify shall be entitled to receive $5.00 per day or fraction thereof, during his attendance. (Emphasis added)

Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding subsection (5) to read:

"(5) In deciding to impose any sentence other than an active prison sentence, the sentencing judge may require, in accordance with the provisions of G.S. 15A-1343, restitution to the victim for the amount of the check or draft and each prosecuting witness (whether or not under subponea) shall be entitled to a witness fee as provided by G.S. 7A-314, which shall be taxed as part of the cost and assessed to the defendant."

Thus, we conclude that in those cases where the prosecuting witness is entitled to a witness fee, the prosecuting witness must be in attendance upon the Court before the witness fee can be taxed as part of the costs.

G.S. 14-107(5) is an exception to the requirement that the witness must be under subpoena, but actual attendance on the Court is required.

The compensation to a witness is not to pay him for testifying, but simply to provide partial reimbursement for the time and expense incurred from being in attendance upon the Court.

Under the facts presented, the prosecuting witness was not in attendance upon the court and witness fee authorized by G.S. 14-107(5) should not be taxed as costs.

Rufus L. Edmisten Attorney General

James F. Bullock Senior Deputy Attorney General