8 Ala. 664 | Ala. | 1845
The only difference between this prosecution and that acted on by this Court in Burns’ case, 5 Ala. Rep. 227, is, that then the Court acted on the motion of the in
We have given this matter more consideration than we should have done, but from the circumstance that it is supposed this discretion to tax the prosecutor is proper, to put down frivolous and malicious prosecutions of all kinds and description. This, perhaps, is the appropriate province of a grand jury, in offences of a criminal character, as well as' in misdemeanors; but in the latter cases only,in our judgment, has the laws of the country invested the Courts with power to tax the costs. The policy of any enactment giving this discretion beyond offences of a minor grade may well be questioned; as tending either to prevent prosecutions which should be originated, or in letting off too easily such individuals as might conspire to alledge crime against innocent persons.
The judgment awarding the costs must be reversed, as having been rendered without warrant of law.