23 N.C. 381 | N.C. | 1841
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 *292 (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,
PER CURIAM. Reversed.
Cited: Commissioners v. March,
(384)