There was a verdict of not guilty as to the defendant J. A. Lance, and the solicitor consented to a verdict of not guilty as to the other defendants. The counsel for the defendants moved that J.H. Sumner be marked as prosecutor, whereupon the court made the following order:
"On the hearing of the testimony, the court being of the opinion that J.H. Sumner should be marked as prosecutor in this case, it is adjudged that he be so marked. The court being further of the opinion, from evidence on the trial, and the affidavits and testimony, that the prosecution of this case was both frivolous and malicious, and that the said prosecutor J.H. Sumner pay the costs of this case, and in *Page 569 default of such payment that he be imprisoned in the common (790) jail of Buncombe County until the same is paid and then discharged according to law."
Whereupon the prosecutor Sumner appealed. Under sections 737 and 1204 of The Code, in all criminal actions if the defendant be acquitted, nolle prosequi entered, or judgment arrested, if the prosecution shall appear to have been frivolous or malicious the court may order the prosecutor to pay the costs, whether marked on the bill or not; and, under section 738 of The Code, he may be imprisoned for the nonpayment thereof if the court, judge or justice before whom the trial was had "shall adjudge that the prosecution was frivolous or malicious." It is found as a fact by the judge below that the prosecution was both frivolous and malicious, and he adjudged that the prosecutor Sumner pay the costs, and this is conclusive. S. v. Hamilton, 106 N.C. 660.
No error.
Cited: S. v. Bailey, 162 N.C. 554; S. v. Trull, 169 N.C. 370.