State v. . LuptonState v. . Lupton
- Reporters:
- Before:
- Dice
Prеvious ¡to Jthe adoption of tbe Code оf Civil Procedure, the power of the¡ Court tо order the prosecutor in ■criminal cases to pay cоsts, was regulated by Statute, and limited to a cеrtain class of cases|(Rev. Code, ch. 35, sec. 37,) ¡and tbe construction of this Statute has been well settled by tbe аdjudication of this Court.!
Prоsecutions for public offences arе now defined as criminal motions (C. C..P., sec. 5,) andj nо person is regarded as a ¡prosecutor unless be is so markedfon tbe bill of indictment.
*484 When a prosecutor is thus made party to an action for any ■ bind оf criminal offence he becomes liable under certain cir■cumstances to pay all costs of the action. Amendment tо» ch. 21, C. C. P., sec. 559.
His Honor in the Court below did not determine the question, whether or not the witness Lupton was marked as prоse- • -cutor. This was a preliminary question which hе was bound to decide in the affirmative before he had the power to render judgment.аgainst the witness as a рrosecutor.
The judgment below must be reversеd, so that his Honor,, after deciding the preliminаry question referred tо, may exercise his discretion in the matter. Let this be certified.
Per Curiam. Judgment reversed.