#### STATE v. LONNIE STONE et al.

(Filed 26 October, 1910.)

1. Criminal Actions — Prosecutor—Costs—Power of Court — Interpretation of Statutes.

Tlie power conferred upon tbe courts to determine tbe question of responsibility and to tax costs against tbe one adjudged to be tbe prosecutor, extends to “all criminal actions where tbe defendant is acquitted, a nolle pros, entered, judgment arrested, or if the defendant shall be discharged from arrest for tbe want of probable cause,” and exists at any stage of tbe criminal proceedings, before or after the finding of the bill or defendant acquitted..

2. Same — Trespass—Title Arbitration.

When, in a trial under indictment for forcible trespass, tbe question depended upon a civil issue as to title, which by consent of tbe parties was referred to arbitration by tbe trial judge, and one of tbe claimants is spoken of in the order of arbitration as prosecutor, the order providing tbat if tbe question of title be found against-him, be shall pay tbe costs as on nolle pros, by tbe solicitor, which resulted in a judgment taxing tbe costs against him. Held, there being nothing restrictive in tbe terms of tbe judgment, it was not error in tbe trial court to find tbe appellant, upon further investigation, had advised the prosecution, actively participated therein, and enter judgment making him a prosecutor of record and also taxing him with the costs, and this disposition of the case is not precluded by the prior judgment referring the question of title to arbitration.

Appeal from O. G. Long, J., by Green Scoggins, at April Term, 1910, of Lee.

On notice duly issued and served, Green Scoggins, a witness for tbe State and so named on bill, was marked as prosecutor and adjudged to pay tbe costs, according to tbe provisions of tbe statute.

Said witness excepted and appealed.

*615 Attorney-General and G. L. Jones for State.

Hoyle & Hoyle for defendant.

Hoke, J.

Tbe powers conferred upon our courts to determine the question of responsibility and to tax tbe costs against one adjudged to be the prosecutor, extends' to all “criminal actions where tbe defendant is acquitted, a nolle pros, entered, judgment arrested, or if a defendant shall be discharged from arrest for want of probable cause.” The statute on the subject, Revisal, sec. 1295, is very broad in its terms, providing the power exists: “Whatever the judge, court or justice shall be of opinion there was not reasonable ground for the prosecution, or that it was not required by the public interest. And every judge, court or justice is hereby fully authorized to determine who the prosecutor is at any stage of a criminal proceeding, whether before or after the bill of indictment shall have been found, or the defendant acquitted; provided, that no person shall be made a prosecutor after the finding of the bill, unless he shall have been notified to show cause why he should not be made the prosecutor of record.” Section 1297 enacts further that such prosecutor may be imprisoned for non-payment of costs taxed against him when the prosecution is adjudged frivolous or malicious. This statute has been construed and applied in S. v. Hamilton and S. v. Roberts, 106 N. C., pp. 660-662, and many other cases on the facts presented fully uphold the ruling of his Honor below in the decision that the witness Green Scoggins be marked as prosecutor and taxed with the stipulated costs. This was an indictment against Lonnie Stone and others for forcible trespass on the property of one O. M. Stokes, he being present forbidding, etc. The bill was found a true bill, July Term, 1908, the names of O. M. Stokes and Green Scoggins appearing as witnesses on the bill. At said term, the trial was entered on and a juror was withdrawn and the cause by consent was referred to an arbitrator to determine and report on the question of title to the property. The order of arbitration signed by the judge, among other things, providing: “That if this award be against the prosecuT tor, O. M. Stokes, he shall be adjudged to pay the costs as in case of nolle pros, of this action by the solicitor.”

*616At November Term, 1909, report was made by the arbitrator to the effect that the title to the property in dispute was in defendants. The award and report was duly confirmed and it was thereupon adjudged that notice issue to O. M. Stokes and Green Scoggins to show cause at April Term, 1910, why they should not be marked as prosecutors.” Notice was duly served and at said term in April, the matter was fully heard and the court, among other things* found the following facts: “That there was not reasonable ground for. the prosecution and that it was not required by the public interest; that Green Scoggins advised the prosecution, went with the prosecuting witness to have the warrant sworn out, helped to employ and pay counsel and actively participated in the prosecution; and entered judgment: ‘The court finds as a fact that Green Scoggins was prosecutor of the case and orders that he be marked prosecutor of record, and that” he be taxed with the costs of the case. The judgment already rendered taxes the prosecutor, O. M. Stokes, with the cost, and this shall not relieve him from liability therefor.’ ”

The appellant concedes that on these facts the action of the court as a rule would be within the power conferred by the statute, but he insists that this disposition of the case is precluded by the judgment referring the question of title to the arbitrator, signed by his Honor, Long, Judge, at the November Term, 1909, but we do not so understand or interpret the order made by Judge Long. The trial of the cause having been entered upon it was evidently disclosed that the question between the parties was a civil issue as to the title to the premises and his Honor in a commendable disposition to aid the parties to an adjustment by consent referred the question of title to an arbitrator. In this order O. M. Stokes, one of the claimants, is spoken of as prosecutor, and it is provided that if the question of title be found against him, he shall pay the costs as on nolle pros, by the solicitor, but there was nothing restrictive in the terms of the judgment and nothing to prevent the court at a later term from further investigation and determining on the facts disclosed that appellant was also a prosecutor. These facts clearly establish that the appellant was a prosecutor and the case having gone off on a nolle pros, we are of opinion that he was not improperly taxed with the costs as provided by the statute. Affirmed.