Show FROM ATTORNEYGENERAL An Opinion as to Coots in Certain I Criminal Cases AttorneyGeneral Bishop yesterday Issued sued a opinion in > response to a request from County Attorney Nowers of Beaver relating to certain criminal prosecutions The opinion Is as follows John Now ers Esq County Attorney Beaver County Beaver Guy Utah Dear S1r1 have before me your favor of the 24th inst in which you recite tat a complaint was fed In the justices court harging the defendant with the crime of grad larceny in which the complainant com-plainant was not a eye witness but 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 afterwards after-wards you filed an information In the district dis-trict court charging grand larceny that afterwards when the case was called for trial thfe prosecuting witness who was the complainant in the justices court stated that he did not care to appear against defendants de-fendants a he thought they had been punished sufficiently You also say that the proper service had been mae on the complainant I assume you mean the servIce ser-vice of subpoena and that he failed to appear at the lat term of court and that you have reason to believe he will not appear ap-pear at the next term even though subpoenaed sub-poenaed to do so and that in all probability 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 curt to tax the costs of the prosecution to the party who hade the complaint before the magistrate magis-trate and how you ought t proceed in the premises Answering your inquiry permit me to suggest that where the party has been legally summoned a a witness to appear in court and he fails to appear and attend upon the court he would be guilty of contempt con-tempt of court and might be deal withIn with-In the manner usual In such cases tat Is move the curt for the Issuance of a bench warrant for the arrest of the party and bring him before the court to be deal with or show cause why he should not be dealt with a being in contempt As to whether or not the complainant who instituted the proceeding could be required t pay the costs in the event of the dismissal of the case I am of the opinion that section 525S of volume 2 of the compiled laws of 1SSS might be sufficient cent for this purpose This section relates re-lates to proceedings In criminal cases in the district courts and being not repugnant re-pugnant to the constitution is still the law upon this subject Section 534G page 7S1 voume 2 compiled laws of 1888 relates re-lates to criminal proceedings in the justice jus-tice courts I You will observe from this section that if i appears to the curt that the prosecution prose-cution was malicious or without probable wit cause it may order the complaining ness to pay the costs of the acton etc while in section 525S supra which is applicable ap-plicable to proceeding in the district court it Is provided that where the complainant 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 sad trial I The question might be raised upon a motion to tax the costs to the prosecuting prosecut-ing witness if the case ha been finally disposed of provided he has been duly subpoenaed to appear in said case before its dismissal s that he could be sad to have had his day in curt I have the honor to be your obedient servant A C BISHOP AttorneyGeneral II |