19 Ky.L.Rptr. 1437, 102 Ky. 383
Court of Appeals of Kentucky.
Dec. 8, 1897.
ACTION: Reversed.

Appeal from circuit court, Knox county.

"To be officially reported."
Action by S. H. Mann against the commonwealth of Kentucky. Motion for allowance of mileage and expenses for transporting witnesses. Plaintiff appeals from an order overruling said motion.

In a prosecution for murder, of the commonwealth, plaintiff, against Joe Adkins and Jesse Fields, defendants, pending in the Knox circuit court, an order was made at the April term, 1895, thereof, appointing James H. Hudson and S. H. Mann special bailiffs, and directing them to proceed to Breathitt county, and summons, arrest, and bring to the court, by the 10th day of that term, witnesses for the commonwealth, whose names were recited, numbering more than 30 persons. As appears from the affidavit of appellant, S. H. Mann, he did, in obedience to said order, go to Breathitt county, and there arrested 10 of said witnesses, besides having summoned, as town marshal of Jackson, Breathitt county, 30 witnesses; that the witnesses so arrested by him were dieted, lodged, and transported 190 miles at his expense, for which he made out an account, sworn to, and presented the same to the Knox circuit court at its January term, 1896, and moved said court to allow his claim. This is an appeal from the order of court overruling said motion. Section 1142, Ky. St., provides "that in the trial of any felony case, in this commonwealth, when the case has been called, and either party is not ready for trial, because of the absence of any witness, or witnesses, in any county other than that in which the said court is sitting, and having been duly subpoenaed, and failing to appear, the circuit judge thereof, be, and he is hereby empowered, to appoint a special bailiff to summon said witness, or witnesses, and who shall have power to arrest, and bring said witness or witnesses immediately before said court. Said bailiff shall be allowed by the judge a reasonable compensation for said service, not to exceed that allowed sheriffs for conveying prisoners to the penitentiary." Section 361 authorizes an allowance to sheriffs of mileage, and the actual necessary expenses for feeding, lodging, and transporting a prisoner to the penitentiary. In our opinion, appellant showed himself clearly entitled to an allowance at the same rate allowed by that section to sheriffs, for the services rendered and expenses incurred by him under said order, though it is the province of the court to determine, according to the proof of services rendered, the amount to be allowed. Therefore the court erred in disallowing his entire claim.

The judgment of the court below is therefore reversed, and the cause remanded for proceedings consistent with this opinion.

Ky.App. 1897.


43 S.W. 694, 19 Ky.L.Rptr. 1437, 102 Ky. 383


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