Montana Attorney General Opinion 16-158

Opinion No. 158. Counties--Claims-Expert Testimony --Crime and Criminal Procedure --County Commissioners-State Employees-Federal Employ- ees-Inquest--County Coroner. HELD: 1. Expert witnesses, as such, are entitled only to regular wit- ness fees. However, the state and county may secure the services of ex- perts in the detection and prosecution of crime. 2. The fact that a physician or bacteriolOgist is paid a salary by the federal or state government, does not preclude him from rendering profes- 160 OPINIONS OF THE ATTORNEY GENERAL sional services in his private capacity to the county. 3. That where an inquest is held the coroner is authorized to engage the services of an expert to make analysis but he is not authorized to do so when no inquest is held. August 22, 1935. Miss Frances C. Elge County Attorney Helena, Montana You have submitted to us a letter from the Board of County Commis- sioners of Lewis and Clark County, in which the commissioners request the opinion of this office concerning the legality of several claims presented to them for payment. Three of such claims were presented by physicians for $50.00 each as fees for testifying as "expert witnesses" in the case of the State of Montana v. Walter S. White, which the letter de- scribes as a "murder case, but was tried on an insanity charge." Another claim is one presented by Dr. B. A. Thompson for $400.00, in the same case, which is itemized as follows: "Mental examination of White $100.00; and $300.00 as assistant to county at- torney covering period from December 29, 1934 to January 3, 1935, services being at the rate of $75.00 per day." All of these claims were approved by the county attorney before being pre- sented to the board. The board also asks for our opinion upon the legality of four claims pre- sented by Fred Stimpert, referred to as "an employee of the State of Mon- tana," which claims were approved by the county attorney and the county coroner, and are as follows: "Analysis of stomach and contents of Gwen- dolyn Salisbury, $75.00; examination of clothes and personal effects of Charles Bruce to determine whether or not blood spots was his blood. $200.00; examination of blood of John Cing for purpose of determining cause of death, $50.00; analysis of stomach and contents of Edward Johnson, $50.00." The board's final question is: "Has the county attorney and county cor- oner the authority to employ such ex- perts, and designate the amount of payments to be made?" It seems that the office of the State Examiner has questioned the validity of the above claims and while the facts stated in regard to them are very meager, we make the following observations which may be helpful to the board and to the State Examiner, concerning these matters. In regard to the claims referred to for giving expert testimony, we find the general rule to be: "In criminal trials the government attorney may not employ experts under a contract to pay compensation in excess of the regular witness' fees in the absent~e of statutory authority therefor; * ':' ,'" (70 C. J. 77.) Our legislature has said: "An expert is a witness and re- ceives the same compensation as a witness." (Section 4947 R. C. M. 1921.) In Board of Com'rs. of Larimer County v. Lee, 32 Pac. 841, the Court of Appeals of Colorado, pointed out: The general rule is "that the profes- sional witness, in the discharge of his duty as a good citizen, is like any other person, whether he be laborer, mer- chant, broker, manufacturer, or bank- er, compellable to attend in obedience to process, and to testify as to what he may know, whether it be observed facts, or accumulated knowledge ac- quired by study and experience. The rule is a sound one, and commends itself to our judgment. It is appar- ently nothing but a question of rela- tive value, and it frequently happens that the loss of time is a less serious one to the professional witness than to the person engaged in the more active business walks of life. Summers v. State, 5 Tex. App. 365; Ex parte Dement, 53 Ala. 389; State v. Teip- ner, 36 Minn. 535, 32 N. W. Rep. 678." It is clear then that in this state the law does not authorize the pay- ment by the county of more than the fees prescribed by Sections 4936 and 4942 R. C. M. 1921, to expert witnesses as such. But we do not mean to imply that the state may not avail itself of the services of experts in the detection and prosecution of crime and that such experts are not entitled to com- pensation for their services. Thus, if the question of the defendant's sanity is in issue, the prosecution may em- OPINIONS OF THE ATTORNEY GENERAL 161 ploy experts to examine the defend- ant and the cost of such examination is a proper charge against the county. (Section 4952 R. C. M. 1921; 15 C. J. 563.) In Allegheny County v. Watt, 3 Pa. 462, 465, the distinction was graphi- cally pointed out: "Had the plaintiff (the physician) ,. " ,. attended merely as a witness, though as an expert, he would have been entitled to nothing; for as the law provides no compensa- tion for witnesses summoned by the coroner, they must give their atten- dance gratis. ,. " " But he was not called as a witness." " " The coroner might have compelled him to swear to his opinion on a superficial view of the body; but he could not have com- pelled him to touch it, or do the more nauseous and dangerous work of open- ing it. * * * When his duty requires * * * (the coroner) to disinter a body, for instance, he cannot be ex- pected to do it with his own hands, or by hands paid for with his means. * * * To the taking of every inquisi- tion super visum corporis * * * a post mortem examination is indispensable; and as the fees of the coroner would be inadequate * * * either the public purse must pay for it, or the admin- istration of public justice must suffer for want of it. And why should not the county pay for it?" So with the claim of Dr. Thompson referred to above, this office has held that such expenses necessarily in- curred by the county attorney in crim- inal cases, are proper charges against the county. (See opinion of Attorney General Galen, 2 Opinions of Attorney General, page 5; opinion of Attorney General Ford, 8 Opinions of the Attor- ney General, page 270; see also Lang- don v. Koster, 157 Cal. 39, 106 Pac. 209; Washoe County v. Humboldt County, 14 Nev. 123; McKenna v. Mc- Haley, 62 Ore. 1, 123 Pac. 1069; Los Angeles Warehouse Co. v. Los An- geles County, 33 Pac. (2) 1058.) In Washoe County v. Humboldt County, supra, it was held that when the county attorney found it neces- sary to have a survey of the premises where a murder was committed, in order to properly present the case to the jury, the county commissioners were authorized to allow a reasonable compensation for such survey. The court said: "Any important fact which tends to establish either the guilt or innocence of a human being upon trial for his life should always be pro- cured if within the reach of the court, and presented to the jury, regardless of expense to the county." The letter from the board states: "The Examiners also are of the opin- ion that a federal employee, receiving pay from the government such as Dr. B. A. Thompson, is not entitled to charge any witness fees at all." It is true that under Section 4936 R. C. M. 1921 "no officer of the United States" may receive any per diem when testifying in a criminal proceed- ing, but we do not understand Dr. Thompson's claim, as itemized above, to be for his services as a witness. If the Federal government permits him to engage in private practice in addi- tion to his regular duties, we know of no provision of law inhibiting the county or state from availing itself of his professional services as a prac- ticing physician. It is our opinion that the board, in the exercise of its sound discretion, would be authorized to al- low Dr. Thompson's claim, if properly signed and acknowledged. In regard to the other claims sub- mitted, we understand that Mr. Stim- pert is a bacteriologist employed by the State Board of Health as Director of the State Hygienic Laboratory. We find no provision in the law requiring either the State Board of Health or Mr. Stimpert to furnish such services nor do we know of any reason why Mr. Stimpert, as a private practicing bacteriologist, may not render such services, and, in a proper case, re- ceive compensation therefor from the county. Section 12383 provides: "* .. * He (the coroner) must summon and ex- amine as witnesses every person who, in his opinion, or that of any of the jury, has any knowledge of the facts, and may summon a surgeon or phy- sician to inspect the body, and give a professional opinion as to the cause of the death." Section 4952 declares that "the accounts of the coroner of the county for such services as are pro- vided by law" are county charges. The letter from the commissioners does not inform us whether or not an inquest was held in each case in which 162 OPINIONS OF THE ATTORNEY GENERAL Mr. Stimpert was employed. In those cases in which an inquest was held, we think that the coroner was author- ized to engage Mr. Stimpert's serv- ices and that his claim for compen- sation under the statutes above cited, is a proper one against the county. "It is very clear, we think, that it was the intent and purpose of these statutory provisions, to clothe the cor- oner of the county, whenever he should be notified that the dead body of any person, supposed to have come to his death by violence or casualty, was within his county, with the necessary power to properly enquire, and if pos- sible ascertain, how, in what manner and by whom such person came to his death, and whether anyone was guilty of said death, and the degree of guilt. The welfare of society and the in- terests of public justice alike deman<1, that such an enquiry or inquest should be thorough and complete, to the end, that, if the death has been caused by a criminal agency, the guilty may be discovered, and receive merited pun- ishment, and the innocent may, per- haps, be freed from unjust suspicion. We think, therefore, that these stat- utory provisions should be liberally construed, with a view to the accom- plishment of the end desired, and in such manner as to enable the coroner, where the death of a human being has apparently been caused by criminal agency, to employ such scientific means, and persons skilled therein, as may be necessary to ascertain the cause of such death. It is well known, that, where the death has been causen by the use of poison, the presence and character of the poison used can be ascertained by a chemical analysis of the contents of the stomach of the dead body, when all other means to that end would probably fail. This being so, and keeping in view the ends to be accomplished by the proper ex- ercise by the coroner, of the powers necessarily incident to the discharge of the duties imposed on him by law, namely, the ascertainment of the cause, the manner and the agency by means of which such violent or casual death has ensued, and the degree of guilt attributable to such agency, it seems to us, that the statutory pro- visions above cited and quoted ought to be so construed, in the interest of justice and humanity, as that the cor- oner may be thereby authorized to employ such medical or surgical skill as may be necessary, in his judgment, in the particular case, and to charge his county with the payment of the reasonable expense thereof. * * * "As the supposition was that the death was caused by poison, it may be regarded as certain, that, without such an analysis of the contents of the stomach of the decedent, the post mortem examination and inquest held by the coroner, in the discharge of his official duty, would have been, at most, an empty and unavailing form. By his employment of the appellant, the coroner secured not only the ap- pellant's analysis of the stomach, but also his personal presence as a wit- ness, whenever it was desired, in Bar- tholomew County," (Jameson v. The Board of Commissioners of Bartholo- mew County, 64 Ind. 524.) See also Board of County Commis- sioners v. Jameson, 86 Ind. 154; Hill v. Mowry, 7 R. I. 167, but see Doremus v. Mayer et aI., 6 Daly (N. Y.) 121. In those cases in which no inquest is held, this office has repeatedly said that the expenses incurred by the cor- oner in investigations, are not a proper charge against the county (see