Brown v. Welch , 151 Ark. 142 ( 1921 )

McCulloch, C. J.

Appellant is the deputy prosecuting attorney for the Western District of 'Clay County, and this appeal involves his right 'to demand and receive a fee on conviction in a criminal case in which he filed information before a justice of the peace, caused the arrest of the two appellees and attended the court on the day the trial was to be held, but the accused entered pleas of guilty.

The right of this officer to demand a fee depends upon the construction of the statute applicable to Clay and certain other counties. Section 8308, Crawford & Moses’ Digest, provides that the deputy prosecuting attorney shall have authority to file with justices of the peace information charging persons with the commission of “any offense against the laws of this State,” and section 8309 reads as follows:

“When any person shall have been arrested under a warrant issued in accordance with the provisions of this act, it shall be the duty of the deputy prosecuting attorney to attend and prosecute such charge on behalf of the State, and he shall in like manner attend and prosecute on behalf of the State in any criminal case pending before any justice of the peace, or in the circuit court of his county, when so requested by any such justice of the peace or the prosecuting attorney of the circuit, and, in the event of a conviction, he shall be allowed the same fees as are now allowed by law to prosecuting attorneys in similar cases in the circuit court. Provided, that two may be appointed for Pulaski County.”

It is clear, we think, that the prosecution of a case by the officer, even where a plea of guilty is interposed before the trial of the cause, entitles him to the fee. The cases cited on the brief of counsel show that the legal definition of the word “prosecute,” when used in this sense, includes a conviction under a plea of guilty where the officer performs the preliminary duties in instituting the prosecution and attends the trial for the purpose of conducting the prosecution. This is made additionally plain, too, by the fact that the statute in question amended the former statute, which provided that there should be no fee demanded by the prosecuting attorney except in case the accused entered a plea of “not guilty” and demanded a trial. Those words were eliminated from the statute now in force in Clay County, and this omission is significant in construing the statute.

Counsel for appellee rely on decisions of. this court in other cases where the statute is different; for instance, the case of Phillips County v. Jackson, 85 Ark. 383, is relied on, hut that case was decided under the statute (Kirby’s Digest, § 6389) which limited the right of the deputy prosecuting attorney to demand a fee to cases where the accused entered a plea of “not guilty” and demanded a trial. The digesters have brought forward into Crawford & Moses’ Digest, as section 8310, Kirby’s Digest, section 6390, relating to the duties of deputy prosecuting attorneys in case's before justices of the peace where the accused. have pleaded not guilty and secured the services of attorneys. We need not determine in this case the extent to which Kirby’s Digest, section 6390, was affected by the later statute (‘Crawford & Moses’ Digest, § 8309) further than to say that the law now applicable to this case entitles the officer to a fee when he attends and prosecutes on behalf of the State, whether the accused secures counsel or not, and even where there is a plea of guilty.

It follows that the circuit court erred in holding that appellant was not entitled to the fee demanded. Judgment is therefore reversed, and the cause is dismissed.