State v. . Jones

23 S.E. 247, 117 N.C. 768

• Court: Supreme Court of North Carolina
• Decided: September 5, 1895
• Status: Published

Opinion

Furches, J. :

This was a motion and order of the Superior Court of Moore County, taxing one Phillips with the costs of the State prosecution. W. B. Jones and Susan Burt were indicted, tried and acquitted. At the conclusion of the trial the court ordered notice to be given to said Phillips to appear on the next day and show cause why he should not be marked as prosecutor and taxed with the costs of the prosecution. Notice of this motion was served on Phillips and on the day fixed by the order said Phillips, by attorney, entered a special appearance and moved to dismiss for the reasons that he had not been properly served and that the motion was made by the counsel of defendant Jones, when it could only be made by the solicitor or by his approval..

Neither of these objections can be sustained. The Act of 1874, amended by the Act of 187j), Code, Section 737, authorized the court, upon notice, to mark Phillips prosecutor after the prosecution had ended. The object of notice is only to give the party a-day. in court, and it matters not how he gets the notice, if he appears and defends under it. This may be done on motion of defendant’s counsel or by the court of its own motion. State v. Hamilton 106 N. C., 660. The court should find the facts: That was done in this case, and the findings are not reviewable in this Court. State v. Hamilton, supra; State v. Roberts, 106 N. C., 662, and State v. Owens, 87 N. C., 565.

But Mr. Phillips, through counsel, makes the further objection that his Honor after hearing bis evidence would not hear evidence of the reports in the neighborhood; and that the court stopped his counsel before he had said all he wished to say in his behalf, and insists that this is in violation of Section 30 of The Code. We do not think so. This section only applies to the trial of criminal or civil actions. It does not apply to the argument or discussion which may and often does arise upon motions and questions during the progress of a trial. And it is well it does not. Were this so, in some counties we are satisfied it would be almost impossible to do the business of the court.

Neither do we think the other objection can be sustained. The court was the trier, of the facts upon the question before it — not issue of fact but question of fact. The court had heard Phillips’ witnesses as to facts and Phillips himself, and makes his findings from all the evidence including that of Phillips. And after hearing all this, we do not think we can say it was error in the court not to prolong the matter, and hear evidence as to the reports in the-neighborhood.

But the court after finding that the prosecution was frivolous and malicious and not for the public good without finding that defendant’s witnesses were proper for the defence, ordered that Phillips should pay the costs of the prosecution, including defendant’s witnesses and to this Phillips objects. The Oode, Sec. 737, requires that the Judge shall certify that they were proper for the defence, and we are unable to find where this question has ever been presented or directly passed upon by this Court. In State v. Owens, 87 N. C., 565, which was an order taxing a prosecutor with costs, it includes such witnesses for the defence as are certified by the counsel to have been proper for the defence, and this Court approved that judgment. Bat this was not the point in the appeal and was only incidentally presented. Also State v. Massey, 104 N. C., 880. The case of State v. Roberts, 106 N. C., 662, which was also a judgment taxing the prosecutor with the costs, but did not find and certify that the prosecution was frivolous, malicious or was not for the public good. This Court held that this judgment was erroneous, and that the statute only allowed a party to be taxed as prosecutor with the costs upon the finding of these facts.

In this case it is found that the prosecution was frivolous, malicious and not for the public good, but it fails to find that defendant’s witnesses were proper for the defense, and reasoning in this case from analogy to the point decided in Roberts’ case, supra, we must hold there was error in that part of the judgment that taxed the prosecutor Phillips with defendant’s witnesses. But the Court say in Roberts’ case the prosecutor is not necessarily relieved from this cost, if the court below should find the facts required by the statute authorizing the order. So we say in this case, that, if the court below will find and certify that these witnesses were proper for defendant’s defence, the judgment may stand ; if not, it must be modified so as not to tax the prosecutor with the witnesses for the defence.

Modified and Affirmed.