
    JOHN SLAGEL v. THE STATE.
    Knoxville,
    June Special Term, 1875.
    CRIMINAL LAW. On. acquittal of the felony and conviction of misdemeanor, state pays her costs as to felony.
    Where a defendant is acquitted of the felony, but is convicted of a misdemeanor, the state shall pay such costs as accrued at its instance, in attempting to malee out the felony, and the matter may be referred to the clerk to ascertain such costs. [As to power to acquit of felony, and convict of misdemeanor, see Code* secs. 7195, 7196, and notes. By whom the costs shall be paid. Code, sees. 7611-7634, and notes.]
   Freeman, J.,

delivered the. opinion of the court.

The party was indicted for malicious stabbing, convicted, and appealed to this court, where the case was reversed and remanded to the circuit court for a new trial. The party was again put- on his trial for the felony, and acquitted of that, but convicted of an assault and battery. A large bill of costs, upwards, of $100, has accumulated in the case. The question is whether the state shall pay such costs as accrued in prosecuting for a felony.

The case of McBride v. The State was identical with this, in which we held the state must pay the costs accrued in attempting to make out the felony; that it was a case of acquittal of felony by the jury. There may be difficulty in separating the cost that accrued as to proof of felony in many cases, yet this ought not to fix them on the defendant. The question in this case should be referred to the clerk to ascertain what costs were incurred by witnesses summoned to show the malice, and this cost, as well as all costs shown to have accrued in making out the felony, must be taxed to the state.

The case will be remanded for this reference, and the costs of this court be paid by the state.  