#### STATE vs. DANIEL L. COCKERHAM.

The Court can, in no case where the Grand Jury returns a Bill “ not a true Bill,” order the prosecutor to pay the costs.

Nor is an indictment for Perjury one of those “ frivolous ox malicious” prosecutions, in which the Court has power, even upon an acquittal of the defendant by a petit jury, to order the prosecutor to pay the costs,because at the time the act was passed giving the Court power in certain cases to order the prosecutor to pay costs, the punishment of perjury did extend, and, in some peculiar cases, does now extend, to the loss of a member.

This was an appeal from an order of the Court below, directing the prosecutor to pay the costs of an indictment for Perjury, on which the Grand Jury had returned “ not a true Bill.” The appeal came from the Superior Court of Macon County, Spring Term, 1841, at which his Honor Judge Battle presided. The following case was sent to this Court by the presiding Judge.

This was an indictment against Rebecca Stillwell for perjury, upon the prosecution of one Daniel Cockerham. The Grand Jury found the Bill “not a true Bill,” and thereupon amotion was made that the prosecutor should pay the costsf upon the ground that the prosecution was frivolous and malicious. The motion was resisted upon the grounds, 1st, Be*382cause the offence charged in the indictment was not one, in which the Court had authority to order the prosecutor to pay the costs; and 2ndly, because the act of Assembly only empowered the Court to order the prosecutor to pay the costs, where the defendant was acquitted, and that the finding of the Bill “not a true Bill”by the Grand Jury, was not within the meaning of the act. The Court held that the offence was such an one as came within the meaning of the act authorizing the Court to order the prosecutor to pay the costs, upon the prosecution appearing to be “frivolous or malicious.” But it was inclined to hold that the acquittal, mentioned in the statute, meant an acquittal before the petit jury; because that is the most common and obvious meaning of the term, and the act seemed to contemplate a trial in Court, where the Judge might himself see from the evidence that the prosecution was frivolous or malicious : but it being stated by counsel at the bar that such orders had been made by judges, on former occasions, upon bills being ignoramused by Grand Juries, the Court said it would allow the motion and make the order, so- that the case could be taken to the Supreme Court, where the question could be settled.

It was accordingly ordered that the prosecutor, D.L. Cockerham, pay all the costs of the prosecution with the Solicitor’s fee of ten dollars. From which order, the said D. L. Cockerham appealed to the Supreme Court.

Attorney General for the State.

No Counsel for the defendant.

Daniel, J.

The defendant as a prosecutor, had exhibited a bill of indictment for Perjury, against one Rebecca Still-well. The Grand Jury returned it “ not a true Bill.” A motion was then made that the prosecutor should pay the costs. The Court made the order accordingly, and the prosecutor appealed.

It seems to us that there are two good and legal objections to the order made by the Superior Court. First, in the State vs. Lumbrick, 1 Law Rep. 543, it was decided that the act of Assembly did not authorize the Court to order the prose*383eutor, under any circumstances, to pay the costs, on the quittal of a defendant on an indictment for an offence, the punishment of which would extend to life, limb or member; such charges were not to be considered “of an inferior nature.” The crime of perjury (at the time the act was passed which gave the Court power to make the prosecutor pay costs in certain cases.) did, in its punishment, extend to affect a member of the offender, and in some cases by the act of 1831, Rev. St. c. 34, s. 52, does still extend to it. This case, therefore, is not within the act of Assembly. Secondly; when a defendant “shall be acquitted of any charge of an inferior nature, the Court may, at their discretion, order the prosecutor to pay the costs, if such prosecution shall appear to have been frivolous or malicious.” Rev. St. c. 35, s. 27. We think that the Legislature by this enactment intended to give the power of ordering the prosecutor to pay costs, only in those cases, where it appeared to the Court, who triédthe indictment, that the prosecution was frivolous or malicious. The Court could not be supposed to be acquainted with the evidence given before the Grand Jury; and therefore, on a return of “ not a true bill” on an indictment, it could not appear to the Court whether the prosecution had or had not been frivolous or malicious. This view is strengthened by the peculiar provision made in another section of the same act, Rev. St. c. 35, s. 23, by which it is directed that when an indictment shall be found by the Grand Jury, and a nolle •prosequi entered, the Court may examine whether the prosecution was. promoted on frivolous or malicious pretences, and, if so, decree that the prosecutor shall be subject to pay the costs.

The judgment must be reversed.

Per. Curiam, Judgment accordingly.