The form of the charge, and not the possibility of guilt, determines the power of the jury. Would not a prosecutor be liable to costs for indicting an indifferent or praiseworthy act as a misdemeanor? It is for the very reason that the defendant cannot be found guilty, though morally culpable, that he too is liable to the same sort of castigation when indicted for what is charged as a misdemeanor; and it follows as a corollary that he may not be so castigated when he cannot be found guilty of what is charged as a felony, because the accusation is specifically different from a misdemeanor, though erroneously denominated. Could the jury impose costs for it on the prosecutor? Felonies were excepted from their power to prevent it from being too great a check to prosecution of the graver offences in which the public have a substantial interest; and it would certainly be, not only a severe, but an impolitic construction which should subject him to costs for having mistaken the nature of an offence which he might have declined to prosecute at the risk of costs. There are. many felonies of doubtful character, in respect to which he might not feel himself secure: and the case of an acquitted defendant is entitled to equal consideration, inasmuch as the jury might otherwise subject him to the odious principle of the common law, which discriminated not, in this respect, betwixt the innocent and the guilty. He was charged with having done the act feloniously, and was, therefore, not in the power of the jury.
Judgment reversed.