The State vs. Spencer G. Barton, 3 Hum. 13

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.