Opinion %
Kinney, J.The only question submitted to the district court in this case is this, “was the plaintiff, John Porter, when called as a witness in a criminal cause, on the part of the state, in a preliminary examination before a justice of the peace, entitled to payment of his fees from the county, when the defendant is discharged.” The court decided the plaintiff entitled to such fees, and rendered judgment in his favor against the county. “Each witness for attending before the district court, is entitled to $1 00; Code § 2544. Before a justice of the peace 50 cents. Mileage for actual travel per mile each way, *80five cents.” This is the only section upon the subject. There is nothing in this to confine the payment of fees to civil cases. It extends to all cases before a justice of the peace, civil as well as criminal. There is no where to be found in the Code a provision requiring witnesses to be paid only in such cases as may be prosecuted to conviction. As far as their fees are concerned, witnesses are a® much entitled to them in those cases when the state fail® to convict, as when a conviction takes place — as much entitled to their fees for appearing before a justice of the peace on a preliminary examination, as when they appear in court upon the main trial. The above section of the Code we think sufficiently comprehensive to embrace all witnesses whether in civil, criminal, preliminary or final trials, and to entitle them to the fees therein designated.
C. Bates, for appellant. Wm. Penn Clark, for appellee.Judgment affirmed.