#### STATE and O. B. LANGSTON v. LEON COLE.

(Filed 29 September, 1920.)

1. Costs — Criminal Law — Prosecution—Findings—Statutes.

In order to tax tbe prosecuting witness with the cost of a criminal action, and for his imprisonment, a finding is necessary that the prosecution was frivolous and malicious. Bey., 1297.

2. Same — Justices’ Courts — Appeal—Superior. Court — Trial de Novo.

An axjpeal from an order of a justice of- the peace taxing the cost against the prosecutor in a criminal action does not involve again the guilt or innocence of the prisoner, who has been acquitted, or violate his constitutional immunity from a second jeopardy, but presents a substantial question to some extent in the nature of a “civil controversy,” and comes within the intent and meaning of Bev., 607, 608, which provides for a hearing de novo on appeal, and prevails also in matters of strictly criminal nature by our statute. Bev., 8274, et seq.

8. Same — Jurisdiction—Additional Findings — Orders—Judgments.

The provisions of our statute, Bev., 1297, conferring on the courts of justices of the peace, and other'courts, who heard the case originally, to presently make the necessary findings, before imprisoning the prosecutor, that the prosecution “was frivolous and malicious,” does not prevent, on appeal to the Superior Court, an inquiry into the matter by the latter court, de novo, or the making additional findings and such further orders and decrees therein as the right and justice of the case may require.

4. Same.

On appeal to the Superior Court from an order of a justice of the peace, in a criminal action, taxing the prosecutor with cost, the proceedings may be entered into de novo, and the court may proceed to find upon the evidence that the prosecution was frivolous and malicious, and adjudge that the prosecutor pay the cost, and order that unless he should have done so within a certain time he be imprisoned until he pay them, or discharged according to law.

MotioN to tax prosecutor with, costs, heard on appeal from a justice’s court, before Bond, J., at April Term, 1920, of Johnston. There was judgment finding prosecution frivolous and malicious, and ordering that unless costs be paid in thirty days, that capias issue for prosecutor, and he be imprisoned till said costs were paid, or until he be discharged according to law, and said prosecutor excepted and appealed.

F. E. Broolcs and Murray Allen for Langston, prosecutor.

HoKE, J.

From a perusal of the record it appears that prosecutor, O. B. Langston, having instituted a criminal action before a justice of the peace against the defendant for removing crops without giving prosecutor, his landlord, legal notice, etc. The cause was tried by the *683justice, R. K. Britt, tbe defendant acquitted, and a judgment entered tbat “tbe prosecutor pay tbe costs.” From tbis judgment tbe prosecutor appealed, and tbe question was beard by tbe court de novo on affidavits setting forth, cbiefly, statements of tbe affiants as to wbat transpired and was testified to at tbe justice’s trial, and, after full bearing, bis Honor entered judgement, in effect, tbat tbe prosecutor be taxed witb tbe costs, and, after a finding, embodied in tbe judgment tbat tbe prosecution was frivolous and malicious, adjudged further, as stated, tbat unless tbe costs were paid in thirty days tbat execution issue against tbe person, and tbat be be imprisoned till said costs were paid, or defendant discharged according to law.

From tbis judgment tbe prosecutor has appealed, assigning for error, cbiefly, tbat tbe court was without power to add to tbe justice’s judgment tbe finding tbat tbe “prosecution was frivolous and malicious,” and tbat on tbe record tbe proceeding should have been dismissed, or at most remanded for further action in tbe justice’s court.

Our decisions construing tbe statute applicable, Rev., 1297, Oon. Stat., sec. 1272, are to tbe effect tbat when a prosecutor is taxed witb costs, on acquittal of a defendant in a criminal action, in order to bis imprisonment it is necessary tbat there be a finding tbat tbe prosecution is frivolous and malicious, and when an order of tbat kind has been made, an appeal lies to tbe higher court. While such an appeal may not again involve tbe guilt or innocence of tbe defendant, who has been acquitted, as tbat would be in violation of bis constitutional immunity from a second jeopardy, it does present a substantial question in tbe nature, to some extent, of a “civil controversy,” and, in our opinion, comes clearly within tbe statutory provisions, and our decisions applicable tbat, on appeal from a justice to tbe Superior Court, the matter shall be beard “de novo.” S. v. Byrd, 93 N. C., 624-627; S. v. Powell, 86 N. C., 640-646; Rev., 607-608.

Tbis same purpose and policy of requiring a bearing de novo on appeals from a justice’s court prevails also in matters of a strictly criminal nature, Rev., 3274, et seq., and is recognized on appeals from tbe clerk to tbe judge on questions of law, on matters more especially pertinent to tbe confirmation of judicial sales, as shown in tbe recent case of Perry v. Perry, 179 N. C., 445.

It is urged for defendant tbat in tbe statute bearing more directly on tbe subject, Rev., 1297, tbe language is tbat a prosecutor, taxed witb costs, may be imprisoned for nonpayment of same, “when tbe judge, court, or justice of tbe peace before whom tbe ease was tried shall adjudge tbat tbe prosecution was frivolous and malicious,” but tbis statute, conferring on tbe court, justice, or other, who beard tbe case originally tbe right to presently make tbe finding, by no means withdraws from *684an appellate court of general jurisdiction, bearing tbe matter in tbe course of regular procedure, and baying power to try tbe question de novo, tbe power of making additional findings, and sucb further orders and decrees therein as tbe right and justice of tbe case may require.

Again, it is insisted that tbe court that tried tbe matter, and which bad opportunity to observe and note tbe bearing and conduct of tbe witnesses, is in much better position to make a just disposition in tbe matter. Sucb an argument may not be allowed to interfere with tbe effect and operation of a valid statute conferring tbe right to deal with this question "de novo.’’ And tbe position, under very similar circumstances, has been disapproved as controlling in a number of our decisions, which bold that, -on trials in tbe Superior Court, a motion to tax tbe costs against tbe prosecutor and to make tbe pertinent findings of fact, may be beard and determined at a subsequent term and before another judge. S. v. Sanders, 111 N. C., 700.

On full consideration, we find no error in tbe record, and tbe judgment of tbe Superior Court is

Affirmed.