State v. . Wallin

*580 SMITH, C. J. We are clearly of opinion that the costs of the prosecution, devolving upon the accused in case of conviction, and for which he may be committed. to the custody of' the sheriff, are such only as were incurred in the conduct of the prosecution and making it effectual in a.verdict. Those are not included which the defendant incurred in resisting the prosecution and defending himself from the criminal charge. Such costs are personal to himself, and be, when found guilty, must provide for their payment. This is the obvious sense in which the term is used in the statute when the successful party recovers costs — that is, his costs against the other. The Code, §§739, 740, 737, 875, 1204, 1211. For then, when adjudged against the prosecutor when the prosecution terminates in a nolle prosequi, acquittal or arrest of judgment, or against the accused when it terminates in a verdict of guilty, either party may be put in the sheriff’s custody until the. costs ■ are paid or he discharged according to law. The Code, §738; State v. Manuel, 4 Dev. & Bat., 20; State v. Cannady, 78 N. C., 539. These charges do not constitute a debt within the meaning of the clause in the constitution for which imprisonment is forbidden (Art. I, §16), but are in the nature of a penal infliction, puni-tory in character and purpose, as is a fine imposed upon one found^guilty of crime. The liability of a person for his own costs is a mere indebtedness which may be enforced by execution sued out in the cause, but for which he cannot be imprisoned. Collins v. Jones, 3 Hawks, 25; Officers v. Taylor, 1 Dev. 99; Clerk’s Office v. Allen, 7 Jones, 156; Clerk’s Office v. Huffsteller, 67 N. C., 449; Superior Court Office v. Lockman, 1 Dev., 146; The Clerk of Davidson County Court v. Wagoner, 4 Ired., 131; Sheppard v. Bland, 87 N. C., 163; Rev. Code, ch. 102, §24. The three last cases directly sustain the proposition that execution may issue against a party for his own costs, and even when he has recovered them against an adversary whose insolvency prevents the collection of the money from him. *581 There is error in the ruling of the superior court, and it is reversed. Let this be certified. Error. Reversed.