Opinion
(June Term, 1841.)
1. The court can in no case where the grand jury returns a bill "Not a true bill," order the prosecutor to pay the costs.
2. Nor is an indictment for perjury one of those "frivolous or malicious" prosecutions in which the court has power, even upon an acquittal of the defendant by a petit jury, to order the prosecutor to pay the costs, because at the time the act was passed giving the court power in certain cases to order the prosecutor to pay costs, the punishment of perjury did extend, and, in some particular cases, does now extend to the loss of a member.
APPEAL from an order directing the prosecutor to pay the costs of an indictment for perjury, on which the grand jury had returned "Not a true bill," at Spring Term, 1841, of MACON, before Battle, J. The following case was sent to this Court by the presiding judge:
Attorney-General for the State.
No counsel for defendant.
This was an indictment against Rebecca Stillwell for perjury, upon the prosecution of one Daniel Cockerham. The grand jury found the bill "Not a true bill," and thereupon a motion was made that the prosecutor should pay the costs, upon the ground that the prosecution was (382) frivolous and malicious. The motion was resisted upon the grounds: (1) Because the offense charged in the indictment was not one in which the court had authority to order the prosecutor to pay the costs; and (2) because the act of Assembly only empowered the court to order the prosecutor to pay the costs where the defendant was acquitted, and that the finding of the bill "Not a true bill" by the grand jury was not within the meaning of the act. The court held that the offense was such an one as came within the meaning of the act authorizing the court to order the prosecutor to pay the costs, upon the prosecution appearing to be "frivolous or malicious." But it was inclined to hold that the acquittal mentioned in the statute meant an acquittal before the petit jury, because that is the most common and obvious meaning of the term, and the act seemed to contemplate a trial in court where the judge might himself see from the evidence that the prosecution was frivolous or malicious; but it being stated by counsel at the bar that such orders had been made by judges on former occasions, upon bills being ignoramused by grand juries, the court said it would allow the motion and make the order, so that the case would be taken to the Supreme Court, where the question could be settled.
It was accordingly ordered that the prosecutor, D. L. Cockerham, pay all the costs of the prosecution, with the solicitor's fee of $10. From which order the said D. L. Cockerham appealed to the Supreme Court.
The defendant as a prosecutor had exhibited a bill of indictment for perjury against one Rebecca Stillwell. The grand jury returned it "Not a true bill." A motion was then made that the prosecutor should pay the costs. The court made the order accordingly, and the prosecutor appealed.
It seems to us that there are two good and legal objections to the order made by the Superior Court. First, in S. v. Lumbrick, 4 N.C. 156, it was decided that the act of Assembly did not authorize the court (383) to order the prosecutor, under any circumstances, to pay the costs on the acquittal of a defendant on an indictment for an offense the punishment of which would extend to life, limb, or member; such charges were not to be considered "of an inferior nature." The crime of perjury (at the time the act was passed which gave the court power to make the prosecutor pay costs in certain cases) did, in its punishment, extend to affect a member of the offender, and in some cases by the act of 1831, Rev. St., ch. 34, sec. 52, does still extend to it. This case, therefore, is not within the act of Assembly. Secondly, when a defendant "shall be acquitted by any charge of an inferior nature, the court may, at their discretion, order the prosecutor to pay costs, if such prosecution shall appear to have been frivolous or malicious." Rev. St., ch. 35, sec. 27. We think that the Legislature by this enactment intended to give the power of ordering the prosecutor to pay costs only in those cases where it appeared to the court who tried the indictment that the prosecution was frivolous or malicious. The court could not be supposed to be acquainted with the evidence given before the grand jury; and, therefore, on a return of "Not a true bill" on an indictment it could not appear to the court whether the prosecution had or had not been frivolous or malicious. This view is strengthened by the peculiar provision made in another section of the same act, Rev. St., ch. 35, sec. 23, by which it is directed that when an indictment shall be found by the grand jury, and a nolle prosequi entered, the court may examine whether the prosecution was promoted on frivolous or malicious pretenses, and, if so, decree that the prosecutor shall be subject to pay the costs.
PER CURIAM. Reversed.
Cited: Commissioners v. March, 89 N.C. 270; S. v. Horton, ib., 582; S. v. Gates, 107 N.C. 832.
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