
    [No. 1131.
    Decided March 15, 1894.]
    The Town of Ilwaco, Respondent, v. R. C. Miller, Respondent, and Fred. Colbert, Appellant.
    
    MALICIOUS PROSECUTION — - LIABILITY OF COMPLAINING WITNESS FOR COSTS.
    The superior court has no authority, upon the acquittal of a defendant in a criminal case, to enter judgment for costs against the complaining witness, although the court may find that the complaint is frivolous and without probable cause.
    
      Appeal from, Superior Court, Pacific County.
    
    
      T. J. Clarh, for appellant.
   The opinion of the court was delivered by

Anders, J.

— The defendant, B. C. Miller, was tried and convicted, before the police justice of the town of Ilwaco, of assault and battery, upon a complaint filed by the appellant, Fred. Colbert. From the judgment rendered against him the defendant appealed to the superior court of Pacific county, where, by consent of parties, the cause was tried by the court without a jury, and resulted in an acquittal of the defendant.

The trial court being of the opinion that the complaint was frivolous and without pi’obable cause, thereupon entered judgment that the appellant, as prosecuting witness, pay the costs of the action, amounting to §95.50, and stand committed until the payment thereof, and that execution issue therefor. •We are aware of no law in this state under which this judgment can be sustained. The provisions of our statute authorizing the taxing of costs against complaining witnesses apply only to cases of examinations before magistrates, and to complaints submitted to grand juries for their investigation. See Code Proc., §§1575, 1588, and Gen. Stat., §3050 (Code 1881, §2103). A judgment similar to the one in hand was declared void by this court in the Permstich case, 3 Wash. 672 (29 Pac. 350), and we perceive no reason to be dissatisfied with that decision.

Judgment reversed.

Dunbar, C. J., and Scott, Stiles and Hoyt, JJ., concur.  