
    The State against Joseph Hargate.
    THE record in this case stated, that the defendant had been indicted in the Superior Court of Law for the district of Salisbury, for grand larceny, and upon his trial was found not guilty, on which he was ordered by the Court to be discharged upon the payment of costs, Williams (of Chatham) Counsel for the prisoner, prayed that the following question should be submitted to the consideration of the Judges at their meeting at this term, viz. Whether a person being tried and acquitted on an indictment for felony, shall be liable to pay the witnesses summoned in behalf of the State, for their attendance ? The question was directed to be brought up, which was accordingly done, and now at this term it came on to be argued by Williams for the defendant, and the Attorney and Solicitor General for the State.
    
      Counsel for the Defendant—
    The practice which has heretofore prevailed of subjecting persons who have been indicted for felony and acquitted, to the payment of the witnesses summoned on behalf of the State, appears not only unjust, as a payment of costs is same punishment on the innocent, but to be a practice against the express law of the land. In Iredell’s Revisal, Laws N. Carolina, p. 363, ch. 4. sec. 19, it is declared, that great injustice is done to witnesses appearing in behalf of the date, by their having no allowance for their attendance at the Superior and County Courts as such; for remedy of which it is enacted, That from the passing of this act, such witnesses shall be allowed the same for their daily attendance as is allowed to witnesses attending upon civil prosecutions, and such fees for attendance shall be paid by the defendant " upon conviction,” and if the state shall fail upon the prosecution of any offence of an inferior nature, the Court may, at their discretion, order the costs to be paid by the prosecutor, in case such prosecution shall appear to have been frivolous or malicious ; and in case the defendant shall not be able to pay the costs, or the Court shall not think fit to order the prosecutor to pay the same, that then, and in that case, the Clerks of the Superior Courts and County Courts, shall grant, a certificate of attendance to such witnesses in manner as tickets are directed to be granted to witnesses in civil causes ; and such tickets may be received by the Sheriff in payment of public dues. The expression made use of in the Act, " that such fees for attendance shall be paid by " the defendant upon conviction,” implies, in the strongest terms, that the defendant shall not be subject to the payment of such fees for attendance of witnesses when acquitted of the charge exhibited against him, but upon conviction only; and that as the defendant in this case was acquitted on the indictment preferred against him, that it would not only be unjust but illegal to tax him with the payment of the attendance of witnesses summoned in behalf of the state, to establish a charge, which upon fair and legal investigation, proved groundless.
    
      Counsel for the State—
    The practice in the Superior Courts of this State, with respect to the payment of witnesses for attendance in behalf of the state by the defendant, has been uniform and invariable ever since the passing of the act of 1779 ; which was passed, as is declared in the preamble to the xix section, to remedy the injustice done to witnesses who attended on behalf of the State, and who before that time had no allowance for their attendance; and this practice has applied as well where the defendant has been acquitted as upon conviction. In every case where the bill of indictment has been found to be true by the Grand Jury, the Court have ordered the Defendant to pay all the costs incurred in carrying on the prosecution, even although on the trial of the issue of traverse joined between the State and the defendant, he hath been acquitted. This practice having commenced with the existence of the act of 1779, serves to shew that the construction put upon it by the Courts of that day is correct, and that the practice was by them deemed strictly consonant with the law. For if a person charged with a crime of a capital nature was to be liable for the payment of the state’s witnesses, upon conviction only, and the Court having in such case no authority to order the prosecutor to pay the costs, then would the witnesses be left wholly unprovided for, a situation in which it is clear the Legislature never intended to leave them, but to relieve them from which this Act of Assembly seems to have been expressly passed. The power of the Court to order the prosecutor to pay the costs, extends to prosecutions for offences of inferior nature only, and not to prosecutions for offences of higher degree; and the present prosecution being for an offence of the latter description, the witnesses for the State will not receive any compensation for this attendance, unless the practice which has so long and uniformly prevailed, be now adhered to.
    The Counsel for the Defendant replied,
    after which the following opinions were pronounced;
    
      
      Note.—An Act of Assembly passed this year, after the foregoing decision, explaining the former law on this subject, and making various regulations respecting the payment of State witnesses. Vide Acts of 1800, chapter 17.
   Johnston, Judge—

I am of opinion that the defendant is not bound to pay the witnesses summoned on the part of the State, but on his conviction by the Petit Jury.

Taylor, Judge—

The act of 1779 does not extend to charge a defendant with the payment of the witnesses on behalf of the State in any cases of acquittal. A conviction is the only case where he is so liable—nor is provision made for the payment of witnesses in any case, except the defendant is convicted, or where being acquitted upon an inferior charge, the court exercise the discretion of ordering the prosecutor to pay the cost. Upon the rule that a statute giving costs, shall be construed strictly, they cannot do this where the defendant is acquitted upon a capital charge. The manner in which witnesses for the State shall be paid when the defendant is acquitted on a charge wherein the Court have no authority to order the prosecutor to pay them, seems to be cafus omiffus.

Macay, Judge—

Before the Act of the General Assembly passed in 1779, witnesses appearing in behalf of the State, were not paid. By the 19th section of that act, upon conviction, the defendant must pay the witnesses for the State-on an acquittal he is not to pay such witnesses for their attendance. Judgment for the defendant.  