State v. Hargate

I am of opinion that the defendant is not bound to pay the witnesses summoned on the part of the State, but on his conviction by the Petit Jury.

The act of 1779 does not extend to charge a defendant with the payment of the witnesses on behalf of the State in any cases of acquittal. A conviction is the only case where he is so liable—nor is provision made for the payment of witnesses in any case, except the defendant is convicted, or where being acquitted upon an inferior charge, the court exercise the discretion of ordering the prosecutor to pay the cost. Upon the rule that a statute giving costs, shall be construed strictly, they cannot do this where the defendant is acquitted upon a capital charge. The manner in which witnesses for the State shall be paid when the defendant is acquitted on a charge wherein the Court have no authority to order the prosecutor to pay them, seems to be cafus omiffus.

Before the Act of the General Assembly passed in 1779, witnesses appearing in behalf of the State, were not paid. By the 19th section of that act, upon conviction, the defendant must pay the witnesses for the State-on an acquittal he is not to pay such witnesses for their attendance. Judgment for the defendant.