The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-08-30
FROM ATToRNEY-GENERAL.
An Opinion as to Costs in Certain
Criminal Cases.

An Opinion as to Costs in Certain
Criminal Cases.
Attorney General Bishop yesterday is
sued an opinion in response to a request
from County Attorney Movers, of Beaver,
relating to certain criminal prosecutions.
The opinion is as follows
John Now ers, Esq, County Attorney,
Beaver County, Beaver City, Utah:
Dear SRI have before me your favor
of the 24th inst. in which you recite that
a complaint was filed in the justice S
court Charging the defendant with the
crime of grand larceny, in which the COM
plalnant was not an eye witness, put
merely the owner of the property stolen
or supposed TO be stolen; and that when
the case was called in the Justices court
defendants waived examination, but after
wards you filed an information in the dis
trict court charging grand larceny; that
afterwards, when the case was called for
trial the prosecuting witness, who was the
complainant in the Justices court stated
that he did not care to appear against de-
PENDANTS, as he thought they had been
punished sufficiently. You also say that
complainant Il assume you mean the SER
vice of subpoena), and that he failed TO
appear at the last term of court, and that
you have reason to believe he will not APP
pear a the next term, even though sub
poenaed to Go so; and that in all proba-
bility the case will have to be dismissed at
the next term of court.
You ask me to advise you whether there
is any law authorizing the court to tax
the costs of the prosecution to the party
who made the complaint before the mag1s-
trate and how you ought to proceed in the
premises.
Answering your inquiry permit me to
suggest, that where the party has been
legally summoned as a witness to appear
in court, and he fails to appear and attend
upon the court he would be guilty OF con-
te.r1, of or,6 iorl1r hp
in the manner usual in such cases; that
is, move the court for the issuance of a
bench warrant for the arrest of the party,
and bring him before the court to be
dealt with or show cause why he should
not be dealt with as being in contempt.
AS to whether or not the complainant
who instituted the proceedings could be
required TO pay the costs in the event of
the dismissal of the case, l am of the
opinion that section 525S, of volume 2, of
the compiled laws of 1888, might be suffi-
cient for this purpose. This section re-
lates to proceedings in criminal cases in
the district courts, and being not re-
pugnant to the constitution, is still the
law upon this subject. Section 5346, page
ISL, volume 2. compiled laws of 1888, re-
lates to criminal proceedings in the JUS
tce courts.
You will observe from this section that
IF ii appears to the court that the prose-
cution was malicious or without probable
cause it may order the complaining wit
ness 10 pay Cle CoSlS Ol the dCliO1l, SlS,
while in section 525S, supra, which is APP
plicable to proceedings in the district
court, it is provided that where the COM
plainant is not an eye witness of the
crime alleged and defendant is not found
guilty on the trial. the complainant shall
pay the costs, unless probable cause
shall have been shown in the said trial.
The question might be raised upon a.
motion to tax the costs to the prosecut-
ing Witness if the case has been finally
disposed of, provided he has been duly
subpoenaed to appear in said case before
its dismissal, so that he could be said to
have had his day in court. I have the
honor to be, your obedient servant,
A. c. BISHOP, Attorney-GeneraL