#### STATE v. G. E. KIRBY and TONY PACE.

(Filed 16 December, 1931.)

Criminal Daw Zi f — Where judge lias failed to find facts upon which he refused motion to retax the costs, tho case will he remanded.

Upon refusing defendant’s motion to retax the costs in a criminal action the judge should find the material facts upon which his ruling is based so that the Supreme Court may determine the correctness of his ruling, *790and where this has not been done the case will be remanded; in this case it not appearing whether the State had tendered its witnesses for cross-examination or whether the trial judge made any order with respect to the fees of any witnesses, or whether certificates were given them by the solicitor, C. S., 1287, or whether the witnesses whose fees were taxed were duly under subpoenas, O. S., 1284, and upon remand the costs of the appeal will be taxed against the State.

Appeal by defendant, G. E. Kirby, from Schenclc, J., at Spring Term, 1931, of Pole.

Remanded.

Tbe defendants in this action were tried and convicted upon an indictment charging them with an affray. It was adjudged that tbe defendant, G. E. Kirby, pay a fine of $25.00 and one-half tbe costs, and that tbe defendant, Tony Pace, pay tbe remaining one-balf of tbe costs. Tbe costs as taxed by tbe clerk amount to $220.20. Tbe defendant, G. E. Kirby, moved that tbe costs be retaxed, contending that tbe clerk bad erroneously included fees for witnesses who were not entitled under tbe law to prove their attendance against tbe defendants. This motion was continued for bearing and was beard at a subsequent term of tbe court.

From an order denying bis motion, tbe defendant, G. E. Kirby, appealed to tbe Supreme Court.

Attorney-General Brummiti and Assistant Attorney-General Seawell for the State.

J. R. Barbour for defendant.

Connor, J.

It does not appear from bis order, or from tbe record in this appeal, that tbe judge who beard defendant’s motion that tbe clerk be directed to retax tbe costs in this action, found tbe facts upon which be denied tbe motion. In tbe absence of such finding, we are unable to determine whether or not there was error in tbe order from which defendant has appealed to this Court.

It appears from tbe case on appeal certified to this Court that tbe clerk included in tbe costs fees for 12 witnesses, and that only 5 of these witnesses attended tbe trial under subpoenas duly issued by tbe clerk. C. S., 1284. Only 4 of these witnesses were called and examined at tbe trial by tbe solicitor for tbe State. It does not appear that tbe other witnesses were tendered by tbe solicitor to tbe defendants for cross-examination, or that tbe trial judge made any order with respect to tbe fees of any of tbe witnesses for tbe State, or that tbe solicitor gave to any of these witnesses certificates as required by C. S., 1287.

On tbe present record it cannot be determined whether or not there was error in tbe order denying defendant’s motion.

*791It is therefore ordered that the action be remanded to the Superior Court of Polk County, with direction that the judge presiding in said court hear such evidence as may be offered at a rehearing of defendant’s motion, and find therefrom the facts which are pertinent to an order disposing of said motion. Upon the facts so found by him, the said judge shall allow or deny defendant’s .motion in accordance with his opinion as to the law applicable to such facts. The costs of this appeal shall be paid by the State.

Eemanded.