¶1 Previous ¡to Jthe adoption of tbe Code of Civil Procedure, the power of the¡ Court to order the prosecutor in ■criminal cases to pay costs, was regulated by Statute, and limited to a certain class of cases|(Rev. Code, ch. 35, sec. 37,) ¡and tbe construction of this Statute has been well settled by tbe adjudication of this Court.!
¶2 Prosecutions for public offences are now defined as criminal motions (C. C..P., sec. 5,) andj no person is regarded as a ¡prosecutor unless be is so markedfon tbe bill of indictment.
¶3*484 When a prosecutor is thus made party to an action for any ■ bind of criminal offence he becomes liable under certain cir■cumstances to pay all costs of the action. Amendment to» ch. 21, C. C. P., sec. 559.
¶4 His Honor in the Court below did not determine the question, whether or not the witness Lupton was marked as prose- • -cutor. This was a preliminary question which he was bound to decide in the affirmative before he had the power to render judgment.against the witness as a prosecutor.
¶5 The judgment below must be reversed, so that his Honor,, after deciding the preliminary question referred to, may exercise his discretion in the matter. Let this be certified.
¶6 Per Curiam. Judgment reversed.