The statute which empowers a grand or petit jury to punish with costs, is penal and to be strictly construed. It expressly directs that the name of the prosecutor be found—a requisition not complied with in this instance. The jury found “the defendant not guilty, and that the prosecutor pay the costs;” but that had no reference to the name of the prosecutor indorsed. The indorsement was to compel the defendant to plead; and though strong, it was not conclusive evidence that the person named was the culpable prosecutor: and it therefore did not appear, with the degree of certainty required by the statute, that he was a prosecutor subject to the penalty. The court therefore proceeded on insufficient premises.
Judgment reversed as to the sentence that the prosecutor pay the costs of prosecution, and affirmed for the residue.