In a worthless check prosecution, can the prosecuting witness get the new $5 witness fee added to costs if the witness wasn't actually present when the magistrate took payment or when the defendant pleaded guilty in court?
Plain-English summary
Chief District Court Judge John S. Gardner of Lumberton asked the AG about the new witness fee provision in G.S. 14-107(5), the worthless check statute. The 1979 General Assembly had added subsection (5), which provided a witness fee for the prosecuting witness in worthless check cases. The judge had two specific situations in mind:
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The defendant pays the bad check and court costs to the magistrate before trial, with no court appearance and no presence by the witness. Does the witness still get the fee?
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The defendant pleads guilty on the trial date, but the witness is not present and does not testify. Does the witness still get the fee?
The 1979 AG said no to both.
The reasoning starts with two background principles. A witness is, in strict legal usage, someone who gives evidence in court. The right to compensation is purely statutory. Statutes about costs are strictly construed because costs are penal in nature.
Applied to G.S. 14-107(5), the new fee provision modifies one of the usual prerequisites for a witness fee (the subpoena requirement) but does not modify the other (the attendance requirement). G.S. 7A-314 provides $5 per day for "a witness under subpoena, bound over or recognized to testify... during his attendance." G.S. 14-107(5) drops the subpoena prerequisite. The witness gets the fee "whether or not under subpoena." But the attendance prerequisite stays in place because nothing in the new provision removes it.
So a prosecuting witness who never came to court does not get the fee. In situation 1, the magistrate handled the payment without trial, and the witness never had to attend. No fee. In situation 2, the witness was not present when the defendant pleaded guilty, and the case ended without the witness's attendance. No fee.
The opinion's policy framing: witness compensation reimburses the witness for time and expense of attending court. A witness who did not attend has no time or expense to reimburse. The fee follows the actual burden.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. 14-107 (the worthless check statute) and the witness fee schedule in G.S. 7A-314 have both been amended since 1979. Current questions about witness fees in worthless check cases should be checked against present statutes and current District Court practice.
Historical context: what the AG concluded
The opinion's analytical move is the careful parsing of what changes G.S. 14-107(5) made to the standard witness fee architecture.
Background framework (G.S. 7A-314):
- Witness must be subpoenaed, bound over, or recognized to testify.
- Witness must be in attendance on the court.
- Fee is $5 per day or fraction.
The opinion drew the historical-rule background from State v. Johnston, 282 N.C. 1, and from City of Charlotte v. McNeely, 281 N.C. 692. Johnston established that the right to witness compensation is purely statutory and that the plaintiff's witnesses must be "under subpoena, and must be examined or tendered" to support taxing the other party. McNeely established that a party who testified for himself was not entitled to a witness fee.
Background gloss (case law):
- General rule: witness must be in actual attendance to receive compensation.
- Witness need not actually testify, but must be present.
- For the plaintiff to recover witness fees as taxed costs, the witnesses must be under subpoena and either examined or tendered.
The new G.S. 14-107(5) (added by Chapter 837, Session Laws of 1979) provided:
"(5) In deciding to impose any sentence other than an active prison sentence, the sentencing judge may require, in accordance with the provisions of G.S. 15A-1343, restitution to the victim for the amount of the check or draft and each prosecuting witness (whether or not under subpoena) shall be entitled to a witness fee as provided by G.S. 7A-314, which shall be taxed as part of the cost and assessed to the defendant."
The "whether or not under subpoena" parenthetical removes the subpoena requirement. It does not remove the attendance requirement. The opinion treats this distinction with care: G.S. 14-107(5) is an exception to the subpoena requirement, full stop. The attendance requirement remains the default and continues to apply.
Applied to the two situations the judge raised:
- Magistrate-disposition case: no court appearance, no witness attendance, no fee.
- Guilty-plea case with absent witness: court appearance happened, but the witness did not attend, so no fee.
The opinion's policy gloss is implicit in the final lines: the fee compensates for time and expense of attending. A witness who did not attend has no compensable burden.
Background and statutory framework
G.S. 14-107 is North Carolina's worthless check statute. It makes it a misdemeanor (or, depending on amount and facts, a felony) to write a check on insufficient funds with knowledge or intent to defraud. The statute has been amended many times over the decades to refine the elements and the penalties.
The 1979 amendment (Chapter 837, Session Laws of 1979) added subsection (5) addressing sentencing and restitution. The provision applied when the sentencing judge imposed any sentence other than an active prison sentence (so, in practice, suspended sentences, probation, fines, or non-confinement dispositions). In those cases, the judge could order restitution under G.S. 15A-1343, and the prosecuting witness was entitled to the witness fee.
The witness fee schedule in G.S. 7A-314 set a $5 per day rate for witnesses. The rate was modest but represented real money in 1979 for a witness whose time was being taken from work. The attendance requirement was a long-standing principle reflecting the policy of reimbursing actual burden, not abstract willingness to testify.
Worthless check prosecutions were (and are) a high-volume category in District Court. Many cases settled with the defendant paying the check and the costs to the magistrate before trial, sometimes through informal procedures or worthless check programs administered by district attorney offices. The judge's question reflected a real practical issue: should the merchant who held the bad check, but who never had to come to court, be paid a fee just for filing the complaint?
The AG's answer (no) preserved the policy connection between fee and attendance. The fee is not a bounty for being a victim or for filing a complaint. It is reimbursement for the burden of court attendance.
Common questions
Could the prosecuting witness collect the fee by signing in at the clerk's office without going into court?
The opinion does not directly address signing in, but the general rule it cites is "actual attendance on the Court." A pure paperwork action without physical presence in court would not satisfy the attendance requirement.
What if the witness was on call during a court day but was not called?
The standard witness fee rule (cited in the opinion) is that a witness need not actually testify, but must be present. A witness on call who appears at the court and waits but is not called would seem to qualify. A witness who was on call at home but never appeared would not.
Does the same rule apply to other criminal cases beyond worthless checks?
The general witness fee rule under G.S. 7A-314 applies to all criminal cases. G.S. 14-107(5) is the specific provision for worthless check cases. The attendance requirement is general; the subpoena exception is specific to G.S. 14-107(5).
What about restitution?
Restitution is governed by G.S. 15A-1343 and the sentencing court's order. The witness fee question is separate. A defendant can be ordered to pay restitution to the victim even if the victim never attended court, as long as the sentencing judge orders it.
Did this opinion settle a debate among judges?
The judge's question suggests there was uncertainty about how to handle the new subsection. The AG opinion provided a uniform answer that District Court judges across the state could apply: no attendance, no fee, regardless of the new subpoena exception.
Source
Citations
- G.S. 14-107
- G.S. 14-107(5)
- G.S. 7A-314
- Chapter 837, Session Laws of 1979
- State v. Johnston, 282 N.C. 1
- City of Charlotte v. McNeely, 281 N.C. 692
Original opinion text
Requested By: Honorable John S. Gardner Chief District Court Judge 704 W. 27th St. Lumberton, N.C. 28358
Questions:
- In a worthless check prosecution pursuant to G.S. 14-107 where the defendant pays the worthless check and court costs to the magistrate before the date of trial, and the prosecuting witness is not present before the magistrate, should the prosecuting witness be paid the witness fee under G.S. 14-107(5)? Should the fee be included in the bill of cost?
- If on the date of trial, the defendant pleads guilty, and the prosecuting witness is not present in court and does not testify, would the prosecuting witness be entitled to the witness fee under G.S. 14-107(5) and should it be taxed as costs?
Conclusion:
- No.
- No.
In its strict legal sense, the word "witness" means one who gives evidence in a cause before the court. 97 CJS 350.
The right of a witness to compensation is purely statutory, and the court's power to tax costs is entirely dependent upon statutory authorization. State v. Johnston, 282 N.C. 1.
The right to tax costs did not exist at common law. Costs are penal in nature and statutes relating to costs are strictly construed. City of Charlotte v. McNeely, 281 N.C. 692.
In McNelly, supra, the Court held that a party who testified for himself was not entitled to a witness fee.
The general rule seems to be that a witness must be in actual attendance on the Court to be entitled to compensation, but he need not be called to testify.
Likewise, the rule is that in order to tax the other party for plaintiff's witness fees, the plaintiff's witnesses must be under subpoena, and must be examined or tendered. Johnson, supra.
G.S. 7A-314 provides that a witness under subpoena, bound over or recognized to testify shall be entitled to receive $5.00 per day or fraction thereof, during his attendance. (Emphasis added)
Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding subsection (5) to read:
"(5) In deciding to impose any sentence other than an active prison sentence, the sentencing judge may require, in accordance with the provisions of G.S. 15A-1343, restitution to the victim for the amount of the check or draft and each prosecuting witness (whether or not under subponea) shall be entitled to a witness fee as provided by G.S. 7A-314, which shall be taxed as part of the cost and assessed to the defendant."
Thus, we conclude that in those cases where the prosecuting witness is entitled to a witness fee, the prosecuting witness must be in attendance upon the Court before the witness fee can be taxed as part of the costs.
G.S. 14-107(5) is an exception to the requirement that the witness must be under subpoena, but actual attendance on the Court is required.
The compensation to a witness is not to pay him for testifying, but simply to provide partial reimbursement for the time and expense incurred from being in attendance upon the Court.
Under the facts presented, the prosecuting witness was not in attendance upon the court and witness fee authorized by G.S. 14-107(5) should not be taxed as costs.
Rufus L. Edmisten
Attorney General
James F. Bullock
Senior Deputy Attorney General