
    The State vs. Spencer G. Barton.
    The court has no power, in any case, to give judgment against the Stale for the costs of defendant’s witnesses.
    Spencer G. Barton was indicted in the circuit court of Gibson county for murder. The case was submitted to a jury and he was acquitted upon the plea of not guilty, at the November term, 1839, and judgment rendered against the State for costs. The clerk of the circuit court, in making out the bill of costs against the State, having failed and refused to insert therein the costs of the defendant’s witnesses, the defendant moved the court to correct the taxation of costs, and that the costs of defendant’s witnesses be taxed to the State. This motion the court, Harris, judge, sustained, and entered up judgment against the State in favor of the defendant for the costs of his witnesses, to wit: for the sum of $175 16 costs.
    The Attorney General, on behalf of the State, appealed in error.
    
      Attorney General, for the State,
    cited Chitty’s Grim. Law, vol. 1, p. 829: Haywood’s Rep. vol. 4, 272.
    
      Totten, for defendant
    The only question is this: where the defendant in a prosecution for felony shall he acquitted, is the State liable to pay defendant’s costs, including the costs of his witnesses.?
    It is deemed immaterial to enquire what may have been the practice of the officers and courts on this subject, as the law must determine the question:
    1. The accused shall “have compulsory process for obtaining witnesses in his favor.” Con. Art. 1, sec. 9. He is entitled to subpoena. Act 1822, ch. 40, sec. 1. (N. & C. 240.). If the witnesses fail to attend, they incur a forfeiture; (N. & C. 712, sec. 33.) Every person “compelled bylaw” to attend as a witness, entitled to certain compensation — 75 cents per day if he reside within the county, Act 183S, ch. 112 — and one dollar per day if he reside without the county.
    By act of 1807, ch. 24, sec. 2, where defendant is acquitted on trial of the merits, he shall also “be acquitted of all costs, except such witnesses as may be summoned for the defendant.”
    2. The sums due the witnesses for attendance, and the other expenses incident to the defence in court, are here deemed a pait of the costs, and paid by the State, except as to the allowance to the witnesses.
    By the ^t of 1813, ch. 136, sec. 2, if the defendant be convicted, he shall pay all costs, including the States’ witnesses and his own. And by the second section of the same act, if he be “acquitted by the verdict of a jury, of a capital offence,” &c. “it shall be the duty of the court, to give judgment for all costs that may have accrued in said prosecution,” to be paid by the trustee, &c.
    3. This includes the costs due from defendant to the clerk, sheriff, witnesses, &c., and every thing constituting the bill of costs.
    By said act of 1807, the State paid all the costs but that due the defendant’s witnesses. By the act of 1813, all the costs are to be so paid without exception.
    The act of 1827, ch. 36, sec. 1, provides, that in all cases of the grade of felony, “where defendant may be acquitted,” tlie State shall pay the costs. Vide, also, the act of 1831, ch. 86. See N. & C. 194, to same effect.
    
      4. It is true, that the party who summons a witness is liable to pay him, and may be sued for payment, either in civil or criminal matters; but the costs are, nevertheless, taxed and collected, either for the witness or the party who had paid him.
    5. Costs are given alone by the statutes, and by reference to them it is plain — whatever may have been the practice — that defendant having defended the charge, and vindicated his innocence, at great expense, is entitled to his necessary costs, due to his witnesses.
    6. And this is right, and consonant to reason and justice. Is it not enough, that defendant being innocent of crime, has suffered the danger, anxiety and expense of a prosecution, aimed at his life ? The accused was compelled to summon numerous witnesses to vindicate his innocence. It is surely not unreasonable that the State should bear the burden of their expense ?
   TüRLEY, J.

delivered the opinion of the court.

Defendant in error was indicted in the court below for the offence of murder, and acquitted. Upon his application the court taxed the State with all his costs; to reverse which this writ of error is prosecuted. We deem it unnecessary, at this day, to enter into an investigation of this subject, as it would be tedious and useless, as we apprehend this is the first time the State has ever been taxed with a prisoner’s cost; at least it is the first time within our knowledge, and the taxation of cost in criminal cases is the frequent employment of the Attorney General and the court at every term. Let it suffice that the recovery of cost is given by statute, and regulated by statute, and among the multiplicity that have been passed on the subject in Great Britain, North Carolina and Tennessee, there is none authorizing the courts to tax the State with any cost but its own. Statutes have been passed taxing the prosecutor where the prosecution is frivolous or malicious; taxing the prisoner when he has been acquitted, and there is strong presumption of his guilt; but it never has been considered proper, as a thing of public .policy, to enact any law by which the State is to be taxed with any cost but its own, and it has been purposed again and again in our State legislature. The judgment of the circuit court will, therefore, be reversed, and the costs taxed as the law directs; those of the State to the State, and those of the prisoner to the prisoner.  