
    [Chambersburg,
    October 24, 1825.]
    SEARIGHT against The COMMONWEALTH.
    IN ERROR.
    The jury cannot convict one of two defendants, jointly indicted for a misdemeanor, and acquit the other, and direct the latter to pay the costs.
    This writ of error was to the Court of Quarter Sessions of Cumberland county, in which an indictment for forgery was found by the grand jury, against the plaintiff in error, Alexander Searight, and Thomas G. Evans, on which, issues being joined on the "pleas of not guilty, and both defendants tried by the same jury, they acquitted Searight, and convicted Evans, and ordered the defendants (naming them,) to pay the costs of prosecution. A motion being made for a new trial, the court afterwards ordered that a new tidal should be granted as to Evans, on condition that he pay the costs of prosecution, and refused the motion for a new trial as to Searight, and sentenced him to pay the costs of prosecution, according to the finding of the jury, immediately, or give security to the sheriff for the payment of the same within ten days, and in default thereof, to be committed till the costs were paid.
    
      Penrose and Carothers, for the plaintiff in error,
    now contended, that the verdict of the jury was not justified by the acts of assembly, relative to costs and indictments. The act of the 8th of December, 1804, provides, that, in all cases of acquittals by the petit jury, on indictments for offences other than felony, the jury trying the same shall determine by their verdict, whether the county, or the prosecutor, or the defendant, or defendants, shall pay the costs of prosecution; and the jury so determining, in case they direct the prosecutor to pay the costs, shall name him or them, in their return or verdict. The meaning of this act is where all the defendants are acquitted, but the present case, where one defendant is convicted, and the other acquitted, is not within the act. The jury could not have ordered the county to pay the costs here. It is sufficient that the words of the act do not permit it: and certainly it never was the intention of the legislature, to make an acquitted defendant pay costs for a convict, who was joined in the same indictment. The costs here are entire; for, by the same act, sect. 3, Purd. Dig. 274, where a number of persons are tried on one indictment, costs ai’e to be taxed as if the name of one person only were contained therein. Of course, if the acquitted defendant pays the costs, the convicted one is clear of them, which would be unjust, and absurd. They further objected, that the act gives no power to the court to pass any sentence on the verdict of the jury: the provision as to sentencing a party to pay costs, or give security for payment within ten days, applies only to prosecutors. Purd. Dig. 274. They cited 2 Sm. Laws, 585, 586, 587.
    
      Ramsay and Metzger, contra.
    If both defendants had been acquitted, the jury might have ordered both to pay costs; why then may they not order the acquitted defendant to pay costs, notwithstanding the other is convicted ? They thought, that Searight, though not guilty of forgery, had acted very imprudently,1 and therefore should pay costs. The court granted a new trial to Evans, on payment of costs, but he ran away, and never paid them, or stood a second trial. If the jury had a right to order Searight to pay the costs, he cannot complain that the court gave him ten days to pay them, on finding security. This was an indulgence, and may be considered as surplusage. They cited The Commonwealth v. Tilghman, 4 Serg. & Rawle, 127.
    
   The opinion of the court was delivered by

Gibson, J.

The question is, whether the jury may convict one of two defendants, jointly indicted of a misdemeanor,‘and* acquit the other, but direct that he pay the costs. The argument on the part of the defendant in error is, that an acquittal under such eireircumstances would, in respect of the costs, put the party acquitted precisely in the condition of a party convicted; and that there is no greater incongruity in sentencing two or more defendants, severally, to pay the same costs, than there would have been in the case of a joint conviction, or acquittal of both, in sentencing them jointly; because, in either case, payment by the one must necessarily be taken for payment by the other. But this, if followed out, would lead to strange inconsistencies. Where four are on trial, the jury might convict the first, and thus subject him to the costs; acquit the second, and order him to pay the costs; acquit the third, and in respect to him order the county to pay the costs; and, lastly, acquit the fourth, and, under a belief that the prosecution is malicious, as concerns him, order the prosecutor to pay the costs: thus, for different and conflicting reasons, subjecting four distinct parties to bear the same burthen; and we cannot intend the legislature meant that the jury should exercise this power so as to produce consequences so absurd. That such consequences might be produced, is incontrovertible; for, if it be admitted that the power may be exercised in any case where one of the defendants is convicted, it may necessarily be exercised in every case.

But in a case of this kind, we are not to grope for any presumed intention. The act in question being penal in its consequences, must be construed strictly; and the language of the legislature is, that in gil cases of acquittal of a misdemeanor, the jury shall determine whether the county, the prosecutor, or “the defendant, or defendants,” shall pay the costs of prosecution. Now, these words, the defendant, or defendants,” are applicable, reddendo singula singulis, to cases where there is but one defendant, and to cases where there are more than one; and the words, “the defendants,” necessarily include all who are on their trial. So that, an exercise of the power where all are not acquitted, is inconsistent with the very words of the act; and no intendment shall prevail against the words of a penal statute.

It has been said, that, where the jury have exercised-this power even properly, it is irregular for the court to render a judgment on their finding; and this, because the legislature has in express terms directed 'fuch a judgment, in pursuance of a finding that the prosecutor pay the costs, and had omitted it, where the costs are ordered to be paid by the defendant. But, without a sentence and commitment in execution, the order of the jury could not be enforced. Even the condition of the defendant’s recognizance, which is, that he shall appear and answer whatever may be alleged against him, abide the sentence of the court, and not depart without license, would not extend to it; and if even it would, a suit on such recognizance would be so inadequate a remedy, as to preclude all reason for supposing that it was in the contemplation of the legislature. But the act of the 18th of March, 1818, which directs, that a jury fee of four dollars be included in the costs of prosecution, uses the word “ adjudged,” which can be predicated only of an act of the court; and uses it, too, as equally applicable to the case of a defendant, as to that of a prosecutor; so that, in this respect they are put on a footing. And it is a matter of no little consideration, that the practice of rendering judgment on a finding of this kind has generally prevailed, since the passing of the original act. The objection for this cause, therefore, fails; but, on the other ground, the judgment is reverséd.

Judgment reversed.  