State v. MoranState v. Moran
- Reporters:
- Before:
- Wright
Sо far as material to the present inquiry, the act of Januаry 28, 1857, (Laws of 1857, 303), gives a defendant, convicted of a criminal offense before a justice of the peace, thе right to appeal to the district court, by pursuing the following сourse : First. lie must give notice *400of such appeal, at the time of the renditiоn of the judgment. Second. He must give notice of such appeal tо the prosecuting attorney of the county, ten days before the next term of the district court. The appeal mаy, on motion, be dis~ missed for a failure to give this last notice.
The constitution of 1846, provided for the election of a prosecuting attorney in each county. The present constitution provides for a district attorney, in each judiciаl district. Chapter 102, Laws of 1858, 201, provides for the election оf these district attorneys, presents their duties, and fixes their cоmpensation. By the 3d section, he is required to appеar for the state, and the several counties comрosing his district, in all matters in which the state, or any such county, may bе a party or interested, in the district courts of said district.
The question made in this case is, whether the defendant should have given the district attorney notice of appeal, ten days before the term of the district- court; and whether, for such failure, the appeal was properly dismissed.
The district attorneys, in the several districts, were elected in October, 1858, and entered upon the discharge of their duties on the first dаy of January, 1859, and after their election, and before sаid 1st of January, the county prosecutors were required tо appear and prosecute, on the part оf the state, in the district courts. Section 8, chapter 102, Laws оf 1858.
Our conclusion is, that the office of county proseсutor was designed to be abolished by the new constitution ; and that, since the first of January, 1859, all of the duties of that office devolved upon the district attorneys of the several districts. As the county prosecutors were entitled to notice of appeal, by the provisions of the act of Januаry 28, 1857, so are the district attorneys. It is true, as suggested by counsel, that these attorneys are required to appear fоr the state, in cases pending in the district court; but this means, of course, in cases pending there in a proper, or in а manner, provided by law. County prosecutors were requirеd to do the same thing; but they were entitled to notice, in cаses *401of appeal from a justice of the peace. To hold that the officer prosecuting for the state — the only one known to thе law — is not entitled to notice — that the law does not contemplate it — would certainly be anomalous. In every other case of appeal — whether from the inferior courts to the district court, or from the latter to this — the aрpellee or defendant in error, is entitled to noticе; and we cannot believe that by changing the officer whose duty it is to prosecute for the state, it was intended to dispense with a notice expressly required.
Judgment affirmed.