
    Frazer vs. The State.
    Costs. Prosecutor. The mere fact that the grand-jury ignore a bill of indictment, is not sufficient evidence that the prosecution is frivilous or malicious, to authorise the court to tax the prosecutor with the costs of the prosecution, The statutes authorising this to be done intend that the facts must appear from the proof on the trial.
    Upon the facts stated in the opinion, the circuit court of DeKalb county, Cullom, Judge, presiding, at its December Term, 1851, rendered the judgment from which the plaintiff in error, appealed.
    S. Tubney, for Frazer.
    Attoeney General, for the State,
   TotteN, J.,

delivered tbe opinion, of tbe court.

An indictment against Matthew Jones, for frequenting a bawdy house, was returned into court by tbe grand jury, “not a true bill.” Henry Frazer was the prosecutor, and one of the witnesses before tbe Jury. The Attorney General moved tbe court to tax tbe prosecutor with costs. No proof was adduced in support of the motion. The court, assuming, from what appeared of record, that the prosecution was frivolous, adjudged that tbe prosecutor pay the costs, and he has appealed in error to this court.

We think the judgment of tbe court was erroneous. If it appear to tbe court that tbe prosecution is frivolous or malicious, it is proper that tbe prosecutor be taxed with the costs; 1194, ch. 1, § 75; 1813, ch. 136, § 3; 1811, ch. 100. But tbe statutes intend that the facts must appear from tbe proof in tbe case, as where tbe defendant is tried and acquitted upon an indictment or presentment, or tried and discharged before a committing justice. In these cases, the character of the prosecutor will appear from the proof adduced at the trial. And if it appear to be frivolous or malicious, it is the duty of the court, in discharging the defendant, to tax the prosecutor with the costs, and render judgment against him therefor. But it cannot so appear, from the mere fact that the grand jury ignored the bill. The cause that induced it to be preferred before them, whether probable or not, does not appear to tbe court. It merely appears that twelve of the jurors did not concur in finding it a true bill. It might be, that all but one did concur, and yet, neither that fact, nor the proof upon which they acted, would appear to the. court; for the proceeding before tbe grand jury, is, in its nature, an ex parte and secret inquisition; not in general, to be made public. Nor was it intended by these statutes, that there should be a separate trial upon the question of probable cause. It is to be considered as incidental, merely, to the principal case.

A different rule might depress and discourage prosecutions, in many very proper and probable cases.

Let the judgment be reversed.  