
    Prince, a slave, vs. The State.
    A statute whicli directs the State or county to pay costs, is to be expounded as limited to the costs of the prosecution, unless the terms of the statute are shown to embrace the costs of die defendant.
    Prince, a slave, the property of Amos London, was indicted for robbery in the Circuit Court of Giles county, and acquitted. London made a motion to tax the costs of defendant’s witnesses against the county of Giles. The facts and opinion of the presiding Judge, Dillahunty, are set forth in the following entry, to wit:
    “This day came Amos London, the owner of the defendant Prince, a slave, and moved the court to tax the costs of the several witnesses subpoenied and examined on behalf of defendant in this cause, to the county of Giles, and that judgment be entered up against said county for the same, on behalf of said witnesses, and that said costs be so certified, that the same be chargeable upon said county in like manner as the other costs, which accrued in the prosecution of said case. And it appearing to the court, that, heretofore, a bill of indictment was duly found in this court against said Prince, who was and is a slave, and the property of said Amos London, charging him with the crime and offence of robbery, and that afterwards the said Prince, so being such slave, was duly arraigned and tried upon the said indictment, at the last term of this court, upon the merits of said charge, and found not guilty by a jury of said county, all of which will fully appear by the said indictment itself, and the several entries of record in said case, all of which are made a part of this bill of exceptions. And it further appearing to the court, that w7hen the aforesaid offence was preferred against said slave Prince, his owner and master, the said Amos London, appeared and employed counsel to defend him, and that in the progress of his defence, it became and was necessary to have subpoenaed and examined certain material witnesses, whose names are mentioned in a schedule hereto annexed, marked A, and made a part of this bill of exceptions, and which witnesses were accordingly duly subpoenaed, attended and were sworn and testified on the trial of said case for the defendant, and their evidence found to be material in his defence. It further appeared, that the costs and attendance of said witnesses amounted to the sum of two hundred and eleven dollars six and a fourth cents, part ofwhich had been paid since the trial by the said Amos London, and that the residue of the defendant’s witnesses, not so paid, claimed the same from said London, and had or were suing him for the same, and that the clerk, as will appear from the judgment and entry in the case, had omitted to tax said costs, or give judgment for the same against any one. Wherefore the said Amos London moved the court as herein before stated; but the court being of opinion, that the costs of said witnesses, in said case, were not chargeable or taxable to the county of Giles, but the same was a case omitted in the statutes upon the subject of costs, and that said witnesses were left to collect their costs, as best they could from such persons as should be liable to them, doth overrule said motion, and refuse to tax or allow said costs against the said .county of Giles, to which opinion of the court, in overruling said motion, the said Amos London excepts.”
    London appealed.
    
      Wright, for the plaintiff in error.
    The defendant, a slave, the property of Amos London, was indicted and tried for robbery, and acquitted, and the only question is, as to the costs of defendant’s witnesses. Shall they be paid by the State, or county, or go unpaid? Or shall they be paid by the master? The 1st section of the act of 1819, provides, that “murder, arson, burglary, rape and robbery, shall, when committed by a slave or slaves, be deemed capital of-fences.” The 3d section provides, “that jailors fees and other costs in all such cases, shall be paid by the,county in which the trial takes place.” N. & C. Rev. 679.
    The act of 1825, (N. & C. R. 679,) gives the owner the right to appear, superintend the defence of the slave, challenge jurors, appeal for him, &c., but does not require him to pay the costs.
    The act of 1836, destroys all power in the justices to try a slave capitally, and gives it to the Circuit Court; places the slave on the footing of a freeman; requires the owner to employ counsel, and makes him liable for the fee whether he will or not: “Provided, that the owner of said slave shall not be liable to pay the costs of said prosecution-.” N. & C. Rev. 683.
    The act of 1837, p. 19, takes away the power to force the counsel’s fee on the master, or coerce him to employ counsel. ■
    Now I contend that the 3d section of the act of 1819, requires all costs to be paid by the county, whether the slave be acquitted or convicted, and that the owner is in no manner responsible for them. The prosecution of a slave for crime, is a thing pro bono publico, and with which the master ought not to be taxed more than any other citizen. In many of the States, so far from being taxed, he is allowed pay for his slave, if convicted, out of the public treasury. He is not obliged to defend his slave or engage counsel. He is, I grant, under high moral, not legal duty, to do so. If he does, shall this place him upon worse ground? Suppose, contrary to his duty, he does not appear or defend the slave, how then will the case be? Who will pay the witnesses? Shall the counsel assigned by the court to defend him? At whose instance, and how are the witnesses to be had? Must it not be at the instance of the master or counsel, one or the other? Who else will do it? And shall we lay down rules to tempt the master not to defend, or to stint the witnesses for the defence? Rules that will deter and embarrass counsel and master? That will limit and destroy the pure and free trial of the slave? The slave himself cannot pay his witnesses. And shall he not have laws securing him a full defence? Witnesses will not, and in many cases cannot attend without compensation. The white man can and is bound to pay his witnesses. The slave may be, and generally is friendless and without influence. Was it not the intention of the legislature, in these act, to secure the entire costs out of the county treasury?
    
      Attorney General, for the State.
   Reese, J.

delivered the opinion of the court.

The slave was indicted for a felony, and acquitted. The Circuit Court, on motion made for the purpose, refused to adjudge the county of the venue, liable for the defendant’s costs. The 3d section of the act of 1819, (N. & C. 679,) provides, that “jailors fees and other costs, in all such cases, shall be paid by the county in which the trial takes place.’'

At common law, costs are not recovered by the prisoner from the Government, and a statute which directs the State or county to pay costs, is to be expounded, as limited to the costs of the prosecution, unless a further intention be shown to embrace the cost of the defendant. That is not the case here. On the contrary, “jailors fees” are mentioned, and the construction, therefore, will be restricted by the ejusdem generis principle, as well as that referred to.

The slave is in the same category with the free man in that respect, and the witnesses for him are in no worse condition, than he who is a witness for an insolvent free man; a state of things, existing in fully one-half of all our prosecutions.

Let the judgment of the Circuit Court be affirmed.  