State v. Owens.
87 N.C. 565
N.C.
1882
Check Treatment

The defendant's motion to vacate the order taxing him with the costs of the main prosecution and the fees of the necessary witnesses for the defence thereof, was properly overruled. Indeed, it is much to be questioned whether it was proper to entertain (567) it at all, since the statute gives to the judge, who tries the cause, the exclusive right to determine these matters.

Of course, however, if he proceed irregularly and contrary to the course of the Court, the party affected is entitled to be relieved, and he may be so at a subsequent term. We infer that in this case his Honor consented to hear the motion only upon this ground — that the absence of the defendant at the time the order against him was made might possibly render it irregular.

Viewing the case in this light, the ruling of the court, in refusing the motion is fully supported by the decision in State v. Spencer, 81 N.C. 519, where it is held, that the presence of a prosecutor on the trial of the defendant is in law a presence to answer a motion to tax him with the costs because of his false clamor, and that a judgment rendered against him for such costs is not irregular, though actually rendered in his absence.

No error. Affirmed.

Cited: S. v. Horton, 89 N.C. 583; S. v. Dunn, 95 N.C. 699; S. v.Hamilton, 106 N.C. 661; S. v. Sanders, 111 N.C. 703; S. v. Jones,117 N.C. 772, 773.