184 Ind. 307 | Ind. | 1916
Lead Opinion
Original action in this court under act of March 8, 1915 (Acts 1915 p.'207), for writ of mandate to compel defendant, judge of the Delaware Circuit Court, to call a named, elected and acting judge, to hear a cause in which a change of judge had been granted, and to prohibit further proceedings until the termination of this action. The complaint avers that on. and prior to June 14, 1915, defendant Ellis was the regularly elected and acting judge of the Delaware Circuit Court and that J. Frank Mann was the regularly elected and acting prosecuting attorney of Delaware County; that previous to said June 14, relator, Gene Williams, was indicted in ten different criminal eases; that on said day relator filed his motion in each case for a
In defendant’s return to the rule to show cause it is averred that more than a year before the commencement of this proceeding, said prosecuting attorney duly appointed relator as deputy prosecuting attorney for the circuit, and that ever since relator has acted in such capacity; that on March 8, 1915, the grand jury of Delaware County was in session, and, in writing, reported to the court that it desired to investigate the office of prosecuting attorney, and requested the appointment of a special prosecuting attorney to assist it in such investigation; that subsequently, on the same day, said Mann, appeared in open court and filed bis written consent to the requested. appointment, conditioned on its limitation to the matters relating to the office of prosecuting attorney; that thereafter on the same day, the court appointed William A. Thompson as a special prosecuting attorney to assist the grand jury in matters wherein Mann, regular prosecuting attorney,
In this case, if the facts warrant, it would be the prosecuting attorney’s duty, both to the people whose majesty he represents, and to the defendant whose lawful rights he may not disregard, to move for a nolle prosequi. He owes a duty to both State and defendant, and if the facts are such as to preclude the exercise of his full duty to both he should step aside. People v. Fielding (1899), 158 N. Y. 542, 53 N. E. 497, 70 Am. St. 495, 46 L. R. A. 641; State v. Montgomery (1909), 56 Wash. 443,. 105 Pac. 1035, 134 Am. St. 1119, 21 Ann. Cas. 331; Cooley, Const. Lim. (7th ed.) 440, and note 2. It would scarcely be questioned that relator might lawfully have objected to Mr. Mann having conducted relator’s prosecution, had the former, on the return of the indictments, promptly discharged
A vacancy in the office of prosecuting attorney is filled by the Governor, but no one contends that a disqualification of such attorney to prosecute a single case causes such vacancy. If the circuit court is not warranted in making such appointment, authority therefor must be held lacking, in which case, after three terms, the accused would be properly discharged. §2091 Burns 1914, Acts 1905 p. 584, §220; State v. Kuhn (1900), 154 Ind. 450, 56 N. E. 106. It is not conceivable that the legislature ever contemplated such absurd result. In Dukes v. State, supra, it was held, in 1859, that the circuit court had the power to appoint a special prosecutor where the regular one was disqualified. Probably the decision was in line with the practice followed theretofore since the office .of prosecuting attorney was created. It recognized a power followed by courts of other states, except where other provision is made. Hartgraves v. State; supra; State v. Flavin (1915), 35 S. Dak. 530, 153 N. W. 296; 32 Cyc 719; 12 Cyc 531; Taylor v. State (1905), 49 Fla. 69, 38 South. 380; King v. State (1901), 43 Fla. 211, 31 South. 254; State v. Moxley (1890), 102 Mo. 374, 14 S. W. 969, 15 S. W. 556; Commonwealth v. McHale (1881), 97 Pa. St. 397, 39 Am. Rep. 808; White v. Polk County (1864), 17 Iowa 434; Keithler v. State (1849), 18 Miss. 192; Territory v. Harding (1887), 6 Mont. 323, 12 Pac. 750. We are of the opinion that, under the facts stated, the court was authorized to appoint a special prosecutor in the eases where Mr. Mann was disqualified.
The demurrer to defendant’s return is overruled. Spencer and Erwin, JJ., dissent.
Dissenting Opinion
Dissenting Opinion.
I do not concur in the majority opinion in this ease, and desire to state as briefly as possible my reasons for dissenting therefrom. First, I can not agree that the questions presented by this action are limited to those discussed in the ' majority opinion, or rather that they are exactly as there stated. It is true that the record discloses no permanent removal from office of the prosecuting attorney, nor any attempt in that direction. The action taken by the trial court, however, was- tantamount to a temporary suspension and this fact directly presents for determination the right of a
As I view the record, however, the first of the above propositions is presented but incidentally, if at all, while the third should be determined in the affirmative without question under the facts stated in the pleadings, and after holding invalid the appointment of Mr. Thompson as special prosecutor. The second proposition, however, suggests the real question in this case, which, to my mind, is not so • much whether the circuit court had “power to appoint a special prosecuting attorney,” but whether it had the right to exercise that power on its own initiative. In reaching its conclusion that the defendant in this action was authorized to appoint a special prosecutor, the majority opinion relies mainly on §9407 Burns 1914, §5865 R. S. 1881, and on the case of Dukes v. State (1858), 11 Ind. 557, 71 Am. Dec. 370, which undertakes to construe the same. There can be no doubt that when a prosecuting attorney fails “to attend any court of his circuit,” there is presented an emergency in which the judge of that circuit may, and it is probably his duty to “appoint some person to prosecute for such term.” In the Dukes case this court overruled the appellant’s contention that the appointment of the special prosecutor therein was void, and gave as its reason
It is true that the prosecuting attorney is an officer of the court, but that expression is to be construed in its larger sense, as meaning a part of the judicial tribunal created by law for the administration of justice. In that capacity he is a public officer, and “the public nature of his. employment results from the fact that he represents the sovereign power of the people of the state, by whose authority and in whose name all prosecutions must be conducted. * * * It is his relation to his client, not to the court, that makes him a public officer.” Fleming v. Hance (1908), 153 Cal. 162, 167, 94 Pac. 620. Again, to transpose slightly the opening words of the sentence, it is said in State, ex rel. v. Friedley (1893), 135 Ind. 119, 128, 34 N. E. 872, 21 L. R. A. 634, that the office of prosecuting attorney, as well as circuit judge, “is a public trust, committed by the public to an individual, the duties and functions of which he is bound to perform for the benefit of the public, and entitles bim to exercise all the duties and functions of the office.” The judges of the circuit courts and the prosecuting
The situation which is presented by the record before this court is not without solution, and, in the opinion of the writer, a solution may be reached (I) which shall be in full harmony with the rights accorded to prosecuting attorneys by virtue of their election to public office; (2) which shall make proper
Whether the circumstances in a particular case should serve to disqualify a prosecuting' attorney from acting therein is a matter which can not be settled through the enunciation of a general rule. The influence of such circumstances is best known to the prosecutor himself and it is but fair and right to assume that when such an officer is convinced that he can not act impartially in a matter at hand, or doubts his ability so to do, he will advise the court of such facts and request the appointment of an assistant. There can be no doubt that “He owes a duty to both . State and defendant, and if the facts .are such as to preclude the exercise of his full duties to both he should step aside.” It would be his duty to take such action and to deny to him in this matter, as in any other, the presumption that he will do his duty is a reflection not alone on the officer himself but on the people who are responsible for his election. As decided by this court in a number of eases, and as thus stated in Wood v. State (1883), 92 Ind. 269, 270: “A prosecuting attorney may properly ask the court to appoint attorneys to assist him in the prosecution of a man accused of crime,, and the court commits no error in granting the request. The law freely accords to the accused the assistance of such counsel as he may desire, and there is no reason why the same privilege should not be accorded to the State.” The exercise of this right is not limited to those cases in which matters of particular importance are involved or in which the prosecutor recognizes that the defense is receiving unusual preparation, but it is equally avail
The use .of the term “inherent power,” as applied to the authority which courts have to appoint an attorney for those who are unable to employ their own counsel, has given rise to apparent confusion in some of the decisions which deal with that right, but, whatever the nature or source of that power, the method of its invocation is well settled and finds clear analogy in the matter now under consideration. As said in Hendryx v. State (1892), 130 Ind. 265, 268, 29 N. E. 1131: “The power, as well as the duty of the court, to assign to poor persons, charged with serious crimes, counsel for their defense, upon a proper showing, is no longer open to dispute in this State.” But while the court has such power and may, on its own motion, advise the accused that he is entitled to counsel, it is not the duty of the court to appoint such counsel except on proper showing and on the application of the accused. As stated in 8 R. C. L. 84: “The defendant’s right to counsel being optional to him, it is for him to assert it. Unless he claims his right, and his request for the assistance of counsel appears by the record to have been denied by the court, no invasion of this right is disclosed.” A similar principle is applicable here. The prosecutor may request assistance or ask that he be relieved in a particular case, but until he does, the court may not act. The judge
The majority opinion suggests, in discussing Mr. Mann’s right to appoint the special prosecutor, that “one may not do indirectly what the law forbids him doing directly.” Yet to hold, in effect, that a circuit judge may, of his motion, suspend the prosecuting attorney in a particular ease is to open an indirect way to a practical removal from office of such official. Certainly the conduct of that office might be seriously interfered with. As is said in Sayles v. Circuit Judge (1890), 82 Mich. 84, 90, 46 N. W. 29: “The circuit judge is a conservator of the peace, but that does not authorize him to appoint any one to act as a public prosecutor, except in his own court, in cases over which he has jurisdiction. Even then his power is statutory. Nor would it be for the
In conclusion, then, it is my opinion that the record at bar discloses no warrant for the action of the Delaware Circuit Court in appointing the special prosecutor, Mr. Thompson, and his appointment
Note. — Reported, in 112 N. E. 98. See, also, under (1, 2) 32 Cyc 689; (4) 8 Cyc 383; 8 Cyc 740; (5) 12 Cyc 530; (6) 12 Cyc 531; 32 Cyc 719, 721; (7) 32 Cyc 719.