I dissent from so much of the foregoing opinion as announces that a nonresident witness duly *223subpoenaed in this state or having entered into a recognizance under the order of a court having criminal jurisdiction and complied therewith, is not entitled to his mileage, and, being convinced that if the opinion of my learned brother is to prevail it will change the universal practice in this state, I have thought best to state in a few words my reasons therefor.
Throughout our statutes governing criminal procedure the power of the courts to compel witnesses to enter into recognizances for their appearance at subsequent days and terms, is recognized. The witness is placed under the compulsory obligation to appear as effectually as if summoned, and the practice obviates the necessity of resorting to a second or third subpoena and thereby relieves the state and defendant of the cost of new process.
As to the objection that the process of the state can not be enforced beyond our borders, it is sufficient, I think, to say that, in this case, the state is in no position to raise that question. Her court did acquire jurisdiction over the witnesses when they appeared therein and did compel them to enter into the recognizance and the state certainly can not now be heard to complain that they obeyed this obligation to her. by appearing and testifying. Nor am I at all prepared to concede that the contractual obligation assumed by the witness is void.
Having entered into this obligation I see no reason why it should not be enforced by our own courts if the witness or his property can be found in this state, nor do I see why it would violate the policy of any sister state to permit the enforcement of a judgment obtained in this state on the breach of such a recognizance.
As stated by my learned brother this court in Hutchins v. State, 8 Mo. 288, in an opinion by Judge Soott, held that a witness residing in another state *224who was compelled to enter into a recognizance for his appearance before our courts was entitled to his mileage from his residence.in said state. The proceeding in that case, as in this, was by mandamus. That result was reached in that case though the statute under consideration did not apply in express terms to a witness who was recognized. Section 20, chapter on fees, Revised Statutes, 1835, p. 272. The court said: “And if a witness is recognized on the part of the state, and attends under the recognizance, he is within the meaning of the act, though he was not actually summoned.”
Section 5003, Revised Statutes, 1889, provides that “each witness shall be examined on oath by the court, or by the clerk when the court shall so order, or by the justice, as the case may be, as to the number of days of his actual necessary attendance under subpoena or recoqnimnce and the number of miles necessarily traveled.”
Section 5004 provides for a fee book to be kept by the clerk in which he is required to enter “the name of the witness, the number of days he has attended, and the number of miles he has necessarily to travel in consequence of the summons or recognizance.”
It seems to me that this subsequent legislation purposely conformed the letter of the statute to its spirit as interpreted by this court, instead of avoiding the construction placed by this court upon the statute before amended.
I recognize the rule that no fees are allowed unless expressly given by statute but I think the nonresident witness who regards the obligation into which he has entered with the state and attends and testifies is entitled to his mileage from his place of residence loth ly letter and spirit of an express statute, and I find nothing in the statute upon which bo base the distinction that his mileage should be restricted to our state lines.
*225Sound policy and justice alike dictate that the state should render some just compensation to a witness who attends our courts from our sister states in the same manner that we reward our own citizens for a similar service. I regard it as a matter of prime importance in the enforcement of the criminal law that the-statute should continue to be construed so as to place-the nonresident witness on the same footing in regard to his fees and mileage as a resident witness.
Brace, C. J., Burgess, Macparlane and Robinson, JJ., concur in my views on this point.