When the prosecutor is marked as such on the bill before indictment found, he can be taxed with the costs without notice and though absent.S. v. Spencer, 81 N.C. 519; S. v. Horton, 89 N.C. 581. But an order to mark any one as prosecutor after indictment found cannot be made without his consent, unless on notice. S. v. Crosset, 81 N.C. 579. It is sufficient, however, if the motion is made in open court, and the party is present. S. v. Hughes, 83 N.C. 665; S. v. Norwood,84 N.C. 794. The order may be made on motion of defendant's counsel, at the instance of the solicitor, or by the court ex mero motu. S. v.Adams, 85 N.C. 560. In the present case, the prosecutor was present in court, testified in the case on trial, and also in the (662) investigation of facts upon the motion to mark him as prosecutor and to tax him with the costs, and the motion was made by defendant's counsel, the solicitor having submitted to a verdict of not guilty upon appellant's testimony.
Neither the judgment that Jones was prosecutor, and that the prosecution was "frivolous and not required by the public interest," nor that ordering him to pay the costs, are reviewable. Like other findings of fact by the judge below, such findings are final and conclusive.
No error.
Cited: In re Deaton, 105 N.C. 63; Merrimon v. Comrs., ante, 373; S. v.Roberts, post, 663; S. v. Sanders, 111 N.C. 701; S. v. Baker, 114 N.C. 813;S. v. Jones, 117 N.C. 772; S. v. Taylor, 118 N.C. 1264; S. v.Butts, 134 N.C. 698; Cobb v. Rhea, 137 N.C. 296; S. v. Stone, 153 N.C. 615;S. v. Bailey, 162 N.C. 585; S. v. Collins, 169 N.C. 325.