The Evening critic., 1881-10-21
ouiTEAu,s WITNESSES.
Decision of the Court on Mr.. SEQ
ytIIass Annltpnfipn.

The announcement in yesterdays Critic
that Justice Cox would in the Criminal
Court this morning, announce his decision
In the case of Guiteau, on the application
of his counsel, Mr. George Scovillc, for the
payment of witness fees and assignment of
assistant counsel, having been generally
read by the public, there was large crowd
assembled in the courtroom to hear the
decision. After the ordinary routine bust
ness had been disposed Of His Honor pro-
cecded at once to the consideration of the
case. The District-Attorncy and Mr.. SEQ
vile were in attendance, but the prisoner
was not present, IL not being deemed neccs-
sary to have him in court.
His Honor said
The Decision of Judge Cox.
An application is made to the Court to
pass an order allowing fees to witnesses re-
siding at a distance of more than hundred
miles from Washington, who arc to be sum-
moned for the defense, together with the
costs of service.
Ii is made under Section No. $50 of the
Revised Statutes of the District, which is in
these words, viz;
"In all criminal trials the Supreme
Court, or the judge trying the case, may
allow such number of witnesses on behalf of
the defendant as may appear necessary, the
fees thereof, with the costs of service, to be
paid in the same manner us Government
witnesses are paid"
This Court, as learn from my brethren
and the older practitioners ut this bar has
repeatedly exercised the power which is
now invoked and which seems clearly to be
conveyed by the general and comprchcn-
sive terms of the statute.
The doubt which have felt on the sub
ject grew out of the ruling of the Supreme
Court in the case of Page vs. Burnstinc, II
Otto.
BY an act of 1864 June 22) parties to
suits in the courts of this District were
rendered competent to testify upon the
trial of their own cases with exceptions not
material to this question:.
By an act of 1865, applying to the courts
of the United States generally, and not to
the District, this privilege was denied
where one of the parties should be an ex-
ecutor or administrator rs to any transac-
ton with or statement by the deceased, &c.
On the 2lst of February, 1871, the act
was passed establishing government for
the District of Columbia, containing this
| section, viz
The Constitution and all laws of the
United States, which are not locally inap-
| plicable, shall have the same force aud eff
feet within the District as elsewhere within
the United States"
In the case of Page vs. Burnstinc the Su-
preme Court held that the effect of the last
mentioned enactment was to make the act
of 1865 before mentioned part of the law
of the District.
The doubt which this case suggested to
me was, whether this same provision of 1871
did not put in force in this District an act
of 1916, applying to the United States courts
outside of the District, providing that
whenever any person indicted in court
/ Of tha I1pitaI Gtotns nj afiiIau;t
ting forth that there are witnesses whose
evidence Is material to his defense; that he
cannot safely go to trial without them;
what he expects to prove by each of
them that they are within the dis
trict in which the court is held or within
one hundred miles of the place of
| trial, &C., &C., &c. % In such case
the costs incurred by the process and the
fees Of witnesses shall be paid in the same
manner that similar costs and fees are paid
in case of witnesses subppnaed in behalf of
the United:Statcs," and whether this law,
comforting the power in question only as to
witnesses who are within n hundred miles
of the place of trial, did not, by implication,
repeal the larger power conferred on the
courts of this District.
think, however, that can perceive diff
ferences between the question determined
in the case cited and the present one.
The restriction upon the party's privilege
of testifying created by the act of 1865,
when made a part of the law of this Dis
trict, being inconsistent with the unqual-
fed privilege which before prevailed, neccs-
sarily operated repeal pro tanto of the ex-
isting law.
On the other hand, there is no necessary
Inconsistency between the act of 1916 in
the general statutes, and the act of 1867,
passed for the District of Columbia, in refer
ence of defendants witnesses.
The act of 1916 is not a restrictive but an
enabling act, and so Is the other. Two acts
comforting at different times different
degrees of authority, although the more
limited one be later in time, are not neces-
sarily conflicting. They are not so in terms.
If they arc, it must be because of implica-
tiOns from the narrower act that the larger
was designed to be modified. This i'm
Iplcation is not necessary one, and whether
it is q proper one in particular case must
depend upon its circumstances.
If the act of 1916 had been enacted anew,
singly and especially for the District, mas
much rs the Court of the District already
possessed larger power, it would be nat
ural suggestion that such an act would be
unnecessary, unless it was intended by i'm
plicatiOn to curtail the powers already con
ferred.
But when it is borne in mind that the act
of 1871 was q sweeping clause, embracing
all possible subjects, and there is no reason
to suppose that any special attention was
given to this particular subject, there is not
the same reason for holding that the one
act was intended to repeal the other, or that
the existing powers of this Court were in
tended to be curtailed. And there is n
reason why the two acts may consist to-
gether and operate c0ncurrcntly, viz that
they provide different relief for different
contingencies.
In the case of witnesses within q hundred
miles, the Court is not in terms clothed
with discretion as to the number of wit
nesses for the defense who are to be paid.
The Court, ON the showing made, may order
payment for the witnesses. This may per-
haps, be held obligatory; or if not the Court
has simply to order or refuse. But under
the general power, conferred without limit
as to distance, by the act of 1867, the Court
il to fix the number of witnesses to be
allowed for the defense and paid by the
United States.
do not think, therefore, that the two
acts are inconsistent, if both are considered
in force here.
But it may be doubted whether the act
of 1916 is to be considered as locally appli-
cable here The term district, within which
the witnesses must be, means, undoubtedly,
the judicial district Of the Federal judiciary
system, whereas the District of Columbia is