Statham v. State , 41 Ga. 507 ( 1871 )

*McCAY, J.

1. Very clearly the offense of obstructing legal process is not an offense against the property or person, nor is it punishable only by fine or imprisonment. It must come within this category to be capable of being settled by the prosecutor and the defendant: Revised Code, 4609, 4610. The very essence of this offense is its insult to the majesty of law. The man who executes the process is, it is true, an individual, but the wrong that is done is the injury to public justice. oThis was not, therefore, such a case as could be settled. Nor was the paper handed by the Solicitor General to the Clerk an entry of nolle prosequi. Such a proceeding is to be coram judice. It must go on the minutes of the Court, and must transpire, at least, with the cognizance of the Court. The minutes are the record of the acts of the Court, and no entry can be made thereon, except with his consent. This the Solicitor General did not ask. The nol. pros, was not, therefore, a complete act, when the Court appointed a Solicitor General, pro tem. Nor is it, in our judgment, within the power of the Solicitor General to nol. pros, an indictment at his option without the approbation of the Court.

By the Act of 1870 it is expressly provided to the contrary. But even before that Act, although we are aware it has often been done, we know of no authority for it. The State is the party, and the Solicitor General only the agent to carry on the proceeding. He has not, and ought not to have unlimited power of prosecution, and great evils may result and have resulted from placing such a power in the hands of one man, whose acts are not done openly and with reasons publicly declared.

Both indictments and presentments are the solemn acts of the Grand Jury, on evidence sworn before them, and it ought not to be in the power of the Solicitor General, without consultation with the Court, to nol. pros, them without a trial. Such has never been the practice, as we learn from some of our oldest practioners, in most of the circuits. It is due to the public, and to the Grand Jury, that such action shall be *with the consent of the Court. The Code, section 415, permits him to do this on terms prescribed by law. It Is not, therefore, an authority dependent upon his own will. If the case be not one permitted by law to be settled, he ought not to a nol. oros, it at all, unless there be good reasons for it. And he should state them in open Court to the Judge, and act under his advice and direction, that he and the country and the accused may know why the charge has been abandoned.

2. Section 419 of the Code authorizes the Judge, if the Solicitor General is absent, indisposed or disqualified from interest or relationship to engage in a prosecution, to appoint “a competent attorney of the circuit” in his place. Necessarily such an appointment, based as it is upon facts of which it is the Judge’s duty to inform himself, must be the result of his sound judgment upon the facts. The law casts the duty upon him, and this Court will not interfere with that duty, unless his discretion be abused. Indeed, we are not sure that his act in appointing a Solicitor General is the subject matter of review In this Court, on an exception by a suitor. When the appointment is made he is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment. The same thing may be said of the other branch of this exception. At most the non-residence of Mr. Goode in the circuit, is a disqualification, and by section 120 of the Code, it is assumed, as a general rule, that the acts of such an officer are good. But we think as Mr. Goode was a practicing lawyer of the circuit, the spirit of the law was complied with.

3. We think the charge of the Court, that the prisoner was guilty if he resisted by argument, was too strong. It can hardly be said, fairly, to be resisting or opposing an officer to argue with him, unless that argument becomes violent so as to amount to something calculated to force the officer to desist.

But we will not, for this error, disturb the verdict. The evidence of violence was conclusive, and the charge of the Judge upon this point was immaterial. It could not have *misled the. jury, as the evidence was very strong of absolute force. This offense is one which the Courts, ought to be sure to punish when it is, in fact, committed. The individual who is in possession of the office may excuse it, but the violated majesty of the law, which has no friends, which does not forgive, and which looks to general principles and to public policy, demands that offenses of this character shall meet their proper reward.