The defendant was endorsed as prosecutor on a bill of indictment for larceny of a mule, found at Fall Term 1867. On the trial there was a verdict of "not guilty," and the prisoner was discharged. Afterward, his Honor the Judge presiding having certified that there was not reasonable ground for the prosecution, and that it was not required by the public interest, *Page 517 but was frivolous and malicious, on motion, it was ordered that the prosecutor Henry C. Darr, pay all costs of the cause, to be taxed by the Clerk, including all the witnesses sworn for the defendants, as the Judge certified that all of them were necessary witnesses.
From this order Darr appealed. The offence charged, larceny, was one "of an inferior nature" within the meaning of the statute, Rev. Code ch. 35 sec. 37, which authorizes the Court to make the prosecutor pay the costs where the defendant is acquitted, and the prosecution "appears to be frivolous or malicious."State v. Lumbrick, 1 Car. L. R. 543.
It appeared to his Honor that "there was not reasonable ground for the prosecution, and that it was not required by the public interest, and was `frivolous and malicious.'" If then the case were governed by the law as it stood when the offense was charged to have been committed, or when the indictment was found, as was contended for by the prosecutor, he might properly be made to pay the costs. But the case falls under the C. C. P. § 560, which was in force at the time of the trial, and which provides that in any criminal action, for whatever grade of offense, the prosecutor, if one is marked on the bill, may be ordered to pay costs, "when the Judge shall certify that there was not reasonable ground for the prosecution, and that it was not required by the public interest" State v. Lupton, at this term. It was therefore proper in this case to make the defendant, who was the prosecutor in the case in which the order was made, pay the costs. There was no error in the judgment appealed from.
This will be certified, c.
PER CURIAM. Judgment affirmed. *Page 518