#### STATE v. T. R. LUPTON.

Tío one is to be regarded as a prosecutor, under tbe Statute rendering prosecutors liable to pay costs, unless Ms name is marked-os such on . tbe bill of indictment.

MisdbmeaNOR, in altering tbe mark of cattle, tried before .Jones, J., at Spring Term, 1869, of tbe Superior Court of Beaufort.

After a verdict of “not guilty,” tbe defendant’s counsel moved that Tbomas R. Lupton, as prosecutor, be made to pay ¡tbe costs. It was objected on tbe part of Lupton that be was mot marked as prosecutor, and bis Honor was asked to inspect tbe record and pronounce whether or not be was so marked. •Upon inspection bis Honor declared that tbe Governor was not marked as prosecutor, as is usual; but declined to say whether Lupton was so marked or not; bolding that as Lup-ton’s name appeared marked on tbe back of tbe bill of indictment first under tbe word “ Pros.,” as be bad gone before tbe grand jury which found.[the bill, and as be bad employed counsel to aid tbe Solicitor for the State in prosecuting, be would be recognized as prosecutor and held liable to pay tbe costs.

To this ruling Lupton excepted; tbe exception was overruled, amd be appealed.

Garter, for appellant.

Attorney General, contra.

Dice, J.

Previous ¡to Jthe adoption of tbe Code of Civil Procedure, the power of the¡ Court to order the prosecutor in ■criminal cases to pay costs, was regulated by Statute, and limited to a certain class of cases|(Rev. Code, ch. 35, sec. 37,) ¡and tbe construction of this Statute has been well settled by tbe adjudication of this Court.!

Prosecutions for public offences are now defined as criminal motions (C. C..P., sec. 5,) andj no person is regarded as a ¡prosecutor unless be is so markedfon tbe bill of indictment.

*484When a prosecutor is thus made party to an action for any ■ bind of criminal offence he becomes liable under certain cir■cumstances to pay all costs of the action. Amendment to» ch. 21, C. C. P., sec. 559.

His Honor in the Court below did not determine the question, whether or not the witness Lupton was marked as prose- • -cutor. This was a preliminary question which he was bound to decide in the affirmative before he had the power to render judgment.against the witness as a prosecutor.

The judgment below must be reversed, so that his Honor,, after deciding the preliminary question referred to, may exercise his discretion in the matter. Let this be certified.

Per Curiam. Judgment reversed.