(after stating the facts). The circuit court gave as reasons for refusing to retax the costs that “the witnesses were subpoenaed as character witnesses, and none of them lived within one hundred and fifty miles from where the defendant had lived for more than nine months prior to the time of the commission of the crime, and they were not competent as character witnesses.” Further, “that none of the• witnesses lived within two hundred miles of Harrison, where they appeared as witnesses, and there was no effort to take the depositions of any of said witnesses.”
Section 2265 of Kirby’s Digest provides that the clerk of the court, upon the request of the defendant, or his attorney, shall issue a subpoena for witnesses. And section 2266 provides for coercing “the attendance of witnesses residing in any part of the State.” Under section 2268 of Kirby’s Digest, the depositions of witnesses to be used in criminal cases can only be taken when ordered by the court or judge under certain conditions, none of which were shown to exist in the case of appellants.
Appellants were compelled to attend the trial of the case in which they were subpoenaed as witnesses. It was not a question for them to determine as to whether they would be used or not. They were still witnesses and entitled to their fees for attendance, although the court held that their testimony was incompetent.
The judgment of the circuit court is. therefore reversed and the cause remanded with directions to enter a judgment retaxing costs so as to include the claims of appellants and to certify the same to the county court for allowance. ,