Kirby v. State , 78 Miss. 175 ( 1900 )

Calhoon, J.,

delivered the opinion of the court.

This case is presented for appellant with marked ability by counsel appointed by the court, who deserves all credit for hisunremunerated services and laborious and intelligent research, on account of which we regret we cannot concur with him. The accused had every possible point made for him in the court, below and here. Code 1892, § 919, prohibits a judge to preside where he is of kin to any party to the cause, or interested in it, or ‘ ‘ wherein he may have been of counsel. ’ ’ Does the word ‘ ‘ counsel ’ ’ include a district attorney who has had no^ further interest in the case than simply to draw the statutory indictment % This is the only question in this record worthy of consideration or insisted on. A district attorney need not be, and ought never to be, in the grand jury room, unless invited to be there by the grand jury for information “in a case in order that the same, may be presented in the manner required bylaw.” Code 1892, § 1556. He need not draw or even sign an indictment. Keithler v. State, 10 Smed. & M., 192. If it is duly presented in open court and marked “Filed” by the clerk, it is enough. We have no such statute as that of Texas, the decision under which is relied on by appellant. With us the district attorney “appears and prosecutes for the state ’ ’ when there is arrest made and proceedings commenced under the indictment. Because one may be the general counsel for the state or a private person cannot disqualify him from presiding in a case in which he was not actually of counsel, did not advise, and was ignorant of the facts, as we must presume in the case at bar. If it had been shown that the judge, as district attorney, had heard the facts and advised and drawn the bill, a very different case would be before us.

The record shows a deliberate murder -for robbery, and no error is found in it, after the most careful examination. Execution of the sentence is set for Saturday, January 5, 1901, between 11 o’clock a.m. and I o’clock p.m., in the manner and at the place as prescribed by law.

Affirmed.