March 31, 1980
Subject:
Criminal Law and Procedure; Costs; Taxing Cost Against Prosecuting Witness.
Requested By:
Gary B. Tash, Judge 21st Judicial District Court
Questions:
- Does G.S. 6-49 empower the court to assess costs against the prosecuting witness solely because prosecution does not result in a conviction of the accused?
- Is the presiding judge, prior to taxing costs against a prosecuting witness, required to make specific findings of fact?
Conclusions:
- No.
- Yes.
G.S. 6-49 provides, in pertinent part, that a prosecuting witness is potentially liable for the cost of prosecution, including witness’ fees, ". . . if the defendant is acquitted, nolle prosequi entered, or judgment against him is arrested, or if the defendant is discharged from arrest for want or probable cause. . . ." The assessment of costs is appropriate where the court is of the opinion" . . . that there was not reasonable ground for the prosecution, or that it was not required by the public interest. . . ."
The fact that a prosecution does not proceed to a full hearing or result in a conviction should not raise a presumption that no reasonable ground existed for it, or that the public interest did not require it. This statute indicates that costs are to be charged against a prosecuting witness only when certain circumstances exist.
Case law requires that the presiding judge make findings of fact to bring the taxing of costs against the prosecuting witness within the requirements of G.S. 6-49.
In State v. Roberts, 106 N.C. 602, 10 S.E. 900, 901 (1890), the North Carolina Supreme Court stated:
"But the right of the court below to tax the prosecutor with costs does not arise as a matter of course. It only exists when one of the states of fact above recited is made to appear, by the expressed opinion or judgment of the Court. In the present case, there is no finding of fact by the judge in this regard, but simply a judgment that the prosecutor pay costs. This has no warrant in the law."
State v. Roberts, id, was interpreting Sections 737 and 738 of the Code, the language of which is virtually identical to G.S. 6-49 with respect to the questions under consideration.
Rufus L. Edmisten Attorney General
Millard R. Rich, Jr. Deputy Attorney General