{
  "id": 8682121,
  "name": "STATE v. P. H. HODSON and anothers",
  "name_abbreviation": "State v. Hodson",
  "decision_date": "1876-01",
  "docket_number": "",
  "first_page": "151",
  "last_page": "154",
  "citations": [
    {
      "type": "official",
      "cite": "74 N.C. 151"
    }
  ],
  "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": [],
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  "last_updated": "2023-07-14T21:08:39.099656+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. P. H. HODSON and anothers."
    ],
    "opinions": [
      {
        "text": "Reade J.\nBefore the adoption of our present Constitution a defendant in a criminal prosecution was obliged to pay his costs whether convicted \u25a0 or acquitted. That was thought to be hard, and so our Constitution is careful to provide that no one shall be compelled to pay costs in a criminal prosecution against him' \u201cunless he'be convicted.\u201d \u25a0 Art. 1, sec. IT. This was much relied on by defendant\u2019s counsel. After thus guarding the rights of defendants, it would be strange to carelessly inflict the costs upon some one else, without conviction. We must avoid Scylla as well \u00e1s Charybdis. And yet in this case the defendants were indicted, a true bill found, nol pros entered, and the prosecution admitted to be frivolous and malicious by the S\u00f3licitor for the- State, whereupon, the court ordered the persons against whom the offence was alleged to have been committed, to be endorsed as prosecutors, and on motion of the defendants ordered the prosecutors so-endorsed to pay the costs of the defendants. They had not been endorsed as prosecutors on the bill of indictment; it does not appear that they were witnesses; or that they had notice of the motion to endorse them as prosecutors, or to make them pay costs. There was no trial from which the court could see from the part they took, whether they were prosecutors, but the action of the court was based upon the admissions of the Solicitor and the motion of the defendants. At least so it appears from the record before us.. It is true that at a subsequent day of the term the prosecutors came into court and asked that the proceedings against them might be re-considered and the order vacated. The court did re-consider but refused to vacate. And so, 'these persons were made prosecutors without their knowledge or consent, and fixed with the stigma of a malicious prosecution and a bill of cost upon the \u201c admissions \u201d of the Solicitor.\nThere is no doubt that the court may, in a proper case, make the prosecutor pay the costs. But it has first to be determined who is the prosecutor ? The Solicitor says that A is the prosecutor; A denies it \u2014 how is it to be determined ? Examine the bill. If he is \u201c marked on the bill,\u201d then he is prosecutor; otherwise not. C. C..P., sec. 560 ; Acts 1874-75, chap. 247.- Jnst~>as-wo determine who is. plaint iff. in a-, ci vil action- Not only-.is that the.plain letter of the statute, hut it, lia&.been decided in twp cases in this court. State v. Lupton, 63 N. C. Rep., 483; State v. Darr, 63 N. C. Rep., 516.\nIt would seem, that no person ought to be endorsed as prosecutor, with-a view,to his liability for - costs, without his consent.. No harm-icaip grow out of this, because the Solicitor may-refuse to send a bill?unless he will consent to be endorsed, and may abandon-the prosecution at any time. And whether he is endorsed or-not,-.he.is liable to a civil action if the prose-, cution be -malicious, when, of course, he can put in issue the fact -whether he did prosecute or not. If, however, one may be made prosecutor without his consent,, an innocent man may, be put in jeopardy,.- npt,: of course, by the wilful wrong of the, Solicitor, but by-,his mistake.\nThis-will be certified, to the. end that the order may be vacated and the appellants discharged.\nPkr. CURTAM-Judgment accordingly,",
        "type": "majority",
        "author": "Reade J."
      }
    ],
    "attorneys": [
      "Dilliard <& Gilmer and Touigee, for the appellants.",
      "Attorney General with whom was Mor\u00e9head, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE v. P. H. HODSON and anothers.\nWhere one, against whom an offence is alleged to have been committed, had not beeu endorsed as prosecutor upon the bill of indictment, the. court has no authority, after indictment found and a nol. proa, entered, to endorse such person as prosecutor, without his consent, and thus subject him to the cost of the prosecution, notwithstanding the Solicitor had admitted that such prosecution was frivolous and ma. licious.\n{State v. Lxipton, 63 N. 0. Rep. 483; State v. Darr, Ibid, 616, cited and. approved.)\nThis was a motion in the cause heard before Kerr..J. at Fall Term, 1875, of Guilfobd Superior Court.\nThe defendants were indicted for a forcible trespass upon the lands of James Lowe and Daniel Lowe.\nAt December Term, 1874, on motion of the counsel for the defendants, upon the admission of the Solicitor that the,indictment was frivolous and malicious it was ordered by the court that James Lowe and Daniel Lowe be endorsed as prosecutors upon the bill of indictment. After this order was made, and when the case was called for trial, the Solicitor entered a nol pros.\nThe counsel for the defendants thereupon moved the court to tax the prosecutors with the cost of the action, and at the request of the court filed a certificate as to the materiality of certain witnesses summoned and in attendance, in behalf of the defendants. Upon the hearing the motion was allowed by the court.\nAt a subsequent day, during the same term of the coxu-t, the prosecutors came into court, and by their counsel moved that the order taxing them with cost be re-considered until they were further heard.\nThe motion was allowed by the court, and at' Fall Term, 1875, the motion was again heard, when it was insisted on the part of the prosecutors that his Honor was not authorized to make the order upon the following grounds:\n1. That the witnesses certified by counsel to be material and necessary for the defence were not examined, and therefore the court could not know that the prosecution was malicious or frivolous'.\n2. That the court had no axxthority in law to adjudge the witnesses of the defendants, material and necessary, upon the certificate of counsel merely, the witnesses never having been sworn or tendered.\nHis Honor permitted the prosecutors to introduce evidence touching the facts connected with the alleged trespass, which evidence was replied to by evidence on the part of the State.\nThe court declined to vacate the order theretofore made and confirmed the same, whereupon the prosecutors appealed.\nDilliard <& Gilmer and Touigee, for the appellants.\nAttorney General with whom was Mor\u00e9head, for the State."
  },
  "file_name": "0151-01",
  "first_page_order": 161,
  "last_page_order": 164
}