State Treasurer v. Rice

The opinion of the court was delivered by Williams, C. J. It is evident that the proceedings in this case were had on the supposition that they were founded on, and to be regulated by the 7th and 8th sections of the [343] statute, relating to fines, costs and 'recognizances, and the , , , & \ , . argument has raised an inquiry as to the powers and duties of justices of the peace, and private prosecutors. There is a striking and important difference in prosecutions for criminal offences here and in England. In this state, prosecutions for offences before the county court, which has original and exclusive jurisdiction of most offences, are conducted by a public officer appointed for that purpose, and responsible for the manner in which he discharges his duty. In England they aré usually instituted and conducted by private prosecutors, and, frequently, are only for the purpose of obtaining redress of a private injury. In many cases the civil action is suspended until the prosecution for the offence is terminated. Although private prosecutions are here recognized in some cases, yet they are unusual, and are not looked upon in a favorable view, and it is rare that the attention of the court has been called to proceedings under the sections of the statute before mentioned, or to the authority of magistrates in such prosecutions. The counsel for the defendant, in an argument exhibiting much research, has questioned the authority of a magistrate to issue tho Warrant, or make the commitment set forth in the writ, and contended that the imprisonment was, on that account, illegal, and the recognizance void. But the authority of a justice of the peace in England to arrest or grant a warrant for felony seems to be established by “ long, constant, universal and uncontrolled practice, and is now undisputed.” In this state the authority to issue warrants for crimes, and to commit for want of bail, has always been recognized as existing, and is expressly given by statute. By the second section of the justice act, justices are empowered to cause to be apprehended and committed to prison, all criminal offenders, the enormity of whose misdemeanor surpasses their power to try. Nearly in the same words was the statute of 1787, and the laws passed in 1779, gave them a similar power. The proceedings before justices are usually the incipient step preparatory to a prosecution. The constitution forbids the issuing of any warrant without oath or affirmation first made, and hence has arisen the practice of making a regular complaint in writing, pro [344] viously to issuing a warrant, which goes out with the warrant. The 10th section of the justice act makes a provision that the complainant shall give security by way of recognizance unless he is an informing officer. It is doubtful who were in- . forming officers at the time of passing that statute. By the decision in Bracket v. The State, 2 Tyler, R. 152,it appears that from the year 1797 to 1801, grandjurors were not general informing officers. The statute of 1801 made them so, and, by another statute, state’s attorneys are constituted informing officers for certain offences. The right of a private person, to complain and prosecute for matters of a criminal nature, has always been provided for. The laws of 1779 subjected the complainant to the payment of cost, when the complaint was not supported, unless he was a town or county informing officer. The same provision was reenacted in the laws of 1787, and the 10th section of the present justice act, enacted in 1797, before mentioned, recognizes such right. There can be no question, therefore, that any individual may now make a complaint for a crime or misdemeanor, for the purpose of having an examination and commitment, taking the oath required by the constitution and giving the surety ‘ required by the 10th section of the justice act. If, upon this examination, the justice orders the person, complained of, to give securtiy for his appearance, or commits him for trial, the prosecution then becomes public, and must be conducted by the officer appointed for that purpose, unless it be for some offence where the complainant has an interest in the prosecution and conviction of the offender. The proceedings here, on the complaint of Mr. Rounds, appear to us to be regular as to the complaint, warrant and examination. By the order of the justice and the act of the judge of the county court in taking bail, it seems they intended to be governed by the 7th and 8th sections of the statute, in relation to fines, costs and recognizances, and it becomes necessary to ascertain in what cases those sections are applicable. At the time of passing that statute, there were several cases where individuals or private persons had an interest in prosecutions for crimes, and in the trial and conviction of the offenders. In a prosecution for theft, the party, from whom the goods, &c. were stolen, might enter as prosecutor, and [345] was entitled to treble damages, and the offender might be assigned in service. In prosecutions for horse stealing, the party was also entitled to an award of treble damages and an assignment of the offender in service. In prosecutions for forgery and perjury, the party aggrieved might recover treble damages, on the convic tion of the offender. Whenever a person had an interest in the conviction, he might become a private prosecutor, and it would seem that he might, after a prosecution commenced by information or indictment, become so, by complying with the requirements of the statute; and, in such case, he was holden for costs, and, if the court directed, he was to enter into a recognizance, both to the treasurer and the person complained of. When he thus became a'prosecutor, the bail for the appearance was to be taken as well to the treasurer as to the complainant. There are but few, if any, cases now remaining, where the person, injured by a crime, can be said to have a pecuniary interest in the prosecution, as our statutes have been revised since 1797. The provisions in relation to prosecuting for offences by a private prosecutor, where the offence is to be prosecuted by indictment, and to giving and taking security for cost, are only applicable to those cases where the individuals have a pecuniary interest in the conviction of the offender. A prosecution for any of the offences, enumerated in the statute in relation to high crimes and misdemeanors, is not one, where any other than a public officer can be the prosecutor after the commitment of the offender for trial, so as to be holden for, or to receive cost. The proceeding of the justice after the examination, in ordering the defendant to become recognized to the prosecutor, as well as to the treasurer, and the recognizance taken by the judge of the county court on which this scire facias is brought, were both irregular, as such recognizance should only have been to the treasurer. This is all which it becomes necessary to decide in this case, although upon another ground, it appears to me, the plaintiff is not entitled-to the remedy he asks for. If the recognizance was regular and legally taken, the party, to whom it was given, was the treasurer and the prosecutor, jointly, and, although the [346] court should direct that either or both might prosecute, yet the parties could not be changed, and the remedy must ke pursued in the names of those to whom the surety was . r ml . , , . , , , given. I he other ground, however, is the one on which the court decides the case. The judgment of the county court is reversed, and let judgment be entered, that the writ and declaration of the plaintiff is insufficient.