STATE v. BUTCHER, 1 Del. Cas. 334 (1793)

Bayard’s Notebook, 29

STATE v. THOMAS BUTCHER.

Court of Quarter Sessions of Delaware.
December, 1793.

Page 335

There were three indictments against the defendant for assaults and batteries, which by consent were tried at the same time.

Defendant being acquitted upon all, Bayard, his counsel, moved to discharge him; to which Vining, in place of Attorney General, objected unless upon payment of costs. He said the Constitution [of 1792, art. 8, s. 8,] did not apply to this case in respect that the indictment was found before it took effect. And there was a provision that prosecution etc., depending when it took effect, should proceed as if it had not been made.

After argument, PER CURIAM. We consider it as a clear point that the defendant is entitled to be discharged without payment of costs, as the acquittal has taken place since the operation of the Constitution. The language of the Constitution plainly applies to the present case. And it would be strange if one man must pay costs and another not, under similar circumstances, merely because of the time when the indictment was found.

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