{
  "id": 2104294,
  "name": "STATE vs. DANIEL L. COCKERHAM",
  "name_abbreviation": "State v. Cockerham",
  "decision_date": "1841-06",
  "docket_number": "",
  "first_page": "381",
  "last_page": "383",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Ired. 381"
    },
    {
      "type": "official",
      "cite": "23 N.C. 381"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "1 Law Rep. 543",
      "category": "reporters:state",
      "reporter": "Law Rep.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T15:26:26.827770+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE vs. DANIEL L. COCKERHAM."
    ],
    "opinions": [
      {
        "text": "Daniel, J.\nThe defendant as a prosecutor, had exhibited a bill of indictment for Perjury, against one Rebecca Still-well. The Grand Jury returned it \u201c not a true Bill.\u201d A motion was then made that the prosecutor should pay the costs. The Court made the order accordingly, and the prosecutor appealed.\nIt 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 proseeutor, 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 \u201cof an inferior nature.\u201d 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 \u201cshall 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.\u201d 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 tri\u00e9dthe 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 \u201c not a true bill\u201d 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 \u2022prosequi 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.\nThe judgment must be reversed.\nPer. Curiam, Judgment accordingly.",
        "type": "majority",
        "author": "Daniel, J."
      }
    ],
    "attorneys": [
      "Attorney General for the State.",
      "No Counsel for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE vs. DANIEL L. COCKERHAM.\nThe Court can, in no case where the Grand Jury returns a Bill \u201c not a true Bill,\u201d order the prosecutor to pay the costs.\nNor is an indictment for Perjury one of those \u201c frivolous ox malicious\u201d 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.\nThis 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 \u201c not a true Bill.\u201d 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.\nThis was an indictment against Rebecca Stillwell for perjury, upon the prosecution of one Daniel Cockerham. The Grand Jury found the Bill \u201cnot a true Bill,\u201d 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, Because 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 \u201cnot a true Bill\u201dby 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 \u201cfrivolous or malicious.\u201d 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.\nIt was accordingly ordered that the prosecutor, D.L. Cockerham, pay all the costs of the prosecution with the Solicitor\u2019s fee of ten dollars. From which order, the said D. L. Cockerham appealed to the Supreme Court.\nAttorney General for the State.\nNo Counsel for the defendant."
  },
  "file_name": "0381-01",
  "first_page_order": 383,
  "last_page_order": 385
}