State v. Johnson , 12 Tex. 231 ( 1854 )

Wheeler, J.

We have heretofore decided that it is not essential to the validity of an indictment, that it be signed by the District Attorney. (Epps v. The State, 10 Tex. R. 474.) Ho good reason is perceived why it should be held to be essential, that the accusation be preferred or presented to the grand jury by that officer ; or why it may not be done by any other attorney, who will take upon himself the obligations necessary to ensure a faithful discharge of the duty, with the sanction, and under the authority of the Court.

It may be admitted that the Court does not possess the power to fill a vacancy .in the office of District Attorney by appointment. The Court may have no authority, under the Constitution and laws, to invest any one with the right to claim the privileges and emoluments of the office, even tenr porarily. But it by no means follows that the State cannot legally be represented in the temporary absence of the District Attorney. If another attorney may represent the State upon the trial, why not, with the sanction of the Court, in drafting and presenting the bill to the grand jury ? It can scarcely be supposed that the judgment, whether of conviction or acquittal would be less effectual, as the basis of an execution, or as a bar to a second prosecution, because the State was represented by an attorney other than the legally elected and qualified District Attorney. There is and can be no good reason why the State or the accused should be denied a hearing or trial, because of the mere absence of the District Attorney, when an attorney, whom the Court shall approve as a competent and suitable person, will undertake, under such obligations as the Court may prescribe, and under its authority and supervision, to represent the State, being amenable and responsible to the Court for the faithful performance of the trust reposed. The District Attorney is not only an officer of the State, but also, in common with other attorneys, an officer of the Court. The former is not less subject, in the discharge of his ordinary official duties, to the authority of the Court than the latter. And any dereliction of official or professional duty in bringing a case before the Court, or in its conduct when there, would be equally the subject of animadversion by the Court. It seems that in Tennessee it has been held to be essential to the validity of an indictment, that it be preferred by the proper law officer of th.e State. (Wharton’s Am. Crim. Law, p. 122, n.) We have not access to the reported cases in which this is said to have been decided ; but we have access to an early statute of that State which might well warrant the decision.

It may be supposed that the interests of the public might suffer, or that the State might sustain an injury by not being represented by its proper law officer. But it is not easy to perceive how the rights of the accused could be thereby prejudiced ; or why it should be held to affect the validity of an indictment duly found and presented in Court, by a competent grand jury. Dor, indeed, is it perceived on what principle the right can be denied the grand jury, under our law, to find and prefer an indictment in a proper case, without the co-operation of the District Attorney. He may enter a nolle prosequi; but if he should think proper to prosecute on behalf of the State, it is not perceived what interest the accused could have in the question whether the indictment was drafted and presented to the grand jury by him, or was drafted by one of their number. But it is not necessary in the present case to inquire into their authority in that respect.

We are of opinion that the fact that, in the temporary absence of the District Attorney, the State was, by the authority of the Court, represented by another attorney, in drafting and presenting to the grand jury the bill, was not a ground for quashing the indictment, and that the judgment be reversed and the cause remanded for further proceedings.

Reversed and remanded.