
    STATE v. GEORGE MAYHEW et al.
    (Filed 31 May, 1911.)
    Solicitor’s Fees — Homicide—Insolvent Defendant — Capital Felony— Interpretation of Statutes.
    A trial upon an indictment charging murder in the first degree, with conviction in the second degree, the solicitor having announced on the trial that he would only ask for conviction in the second degree or manslaughter, does not entitle the solicitor to his full fees when the party convicted is insolvent, the exception to the statute where full fees are allowed in such instances being “capital felonies,” etc., and murder in the second degree is not a “capital felony.” Revisal, sec. 2768.
    Claísk, C. J., dissenting; Walker, J., concurring in the dissenting opinion.
    
      Appeal from 0. H. Allen, J., at tbe April Term, 1910, of WayNE.
    Tbis is an appeal by tbe Commissioners of Union County from an order of bis Honor retaxing tbe costs or fees due tbe solicitor in above case.
    Tbe following are tbe findings and judgment:
    1. Tbat at January Criminal Term of Union County tbe solicitor sent a' bill of indictment before tbe grand jury, charging George Maybew and two others witb murder in tbe first degree, and tbat said indictment was returned into open court ,on Monday, 28 January, indorsed “A true bill.”
    2. Tbat on 31 January at said term tbe solicitor afinounced tbat be would not ask for murder in tbe first degree, but for murder in tbe second degree or for manslaughter, as tbe jury might find tbe facts to be.
    3. Tbat said defendants were put on trial and convicted of murder in tbe second degree at said term, and were sentenced to terms of years in tbe penitentiary.
    4. Tbat said defendants are insolvent and are unable to pay tbe costs in tbe case.
    5. Tbat in making out tbe bill of costs in tbe case to be presented to tbe county commissioners tbe clerk taxed a fee of $10 for each defendant, and tbe bill' was ordered paid by tbe Commissioners of Union County.
    6. Tbat upon due notice to tbe Commissioners of Union County tbe solicitor moved to retax tbe bill of costs, claiming tbat be is entitled to a fee of $20 for each defendant; and, by consent, tbe motion wu£ beard before tbe court at tbe February term of tbe Superior Court.
    Upon tbe foregoing facts tbe court is of tbe opinion tbat tbe solicitor is entitled to a fee of $20 for each defendant convicted upon said indictment, and tbe clerk is hereby directed to retax tbe bill of costs in accordance witb tbis order.
    
      J. J. Parlcer for the Solicitor, appellee. ¡
    
    
      Adams, Armjield & Adams for Commissioners of Union County, appellants.
    
   Ebowjst, J.

Tbe fees of tlie solicitor in tbis case are fixed by tbe following paragraphs, section 2768 of tbe Eevisal: “Tbe solicitors shall, in addition to tbe general compensation allowed them by tbe State, receive tbe following fees, and no other, namely:

“For every conviction upon an indictment which they may prosecute for a capital crime, $20.

“Tbe fees in all tbe above cases are to be taxed in'the costs against the party convicted; but where tbe party convicted is insolvent, tbe solicitor’s fees shall be one-half, to be paid by tbe county in which tbe indictment was found, except that for convictions in capital felonies., forgery, perjury, and conspiracy, when they shall receive full fees.”

Tbe record in tbis case raises only one point, viz.: Is tbe solicitor entitled to full fee of $20 for each defendant or to only $10, half fees?

It is admitted by tbe counsel for tbe appellants, the commissioners, that tbe solicitor is entitled to $10, half fees, for each defendant convicted in this case.

Tbe prosecution, as commenced by bill of indictment, was undoubtedly for a capital crime, but the conviction was for murder in tbe second degree, which is not a capital crime. It would therefore seem plain that under tbe express language of tbe act, tbe defendants being insolvent and tbe county taxed with tbe costs, tbe solicitor is entitled to only half fees, admitted by appellants to be $10 in each case.

There was no conviction for a capital felony,. and therefore tbe case is not brought within the exception contained in tbe statute.

Since tbe division of tbe crime of murder into two degrees, tbe solicitor’s fees have remained unchanged. It requires about as much labor to convict of murder in second degree as of tbe capital crime, and a conviction for tbe former should be put on tbe same basis as forgery, perjury, and conspiracy; but that can be done only by tbe Legislature.

It is suggested that tbe solicitor never prosecuted an indictment for a capital crime, and that be is entitled to only $4. We are of opinion that be commenced a prosecution upon an indictment for a capital crime, and tbat bad be convicted tbe defendants of tbe capital felony be would bave been entitled to $20 for eacb defendant; but as be did not so convict, be is entitled to only balf tbat sum. Tbe jiroseeution commenced wben tbe solicitor drew tbe indictment for murder, a capital felony, and sent it to tbe grand jury. Tbe prosecution for a capital felony continued wben the bill was returned a true bill and tbe solicitor caused tbe'prisoners to be arraigned, as tbe record shows, for a capital felony. “Prosecution is the whole or any part of tbe procedure which the law provides for bringing offenders to justice.” Words and Phrases, vol. 6, p. 5131, citing Ex parte Fagg, 38 Tex. Cr. R., 573, 44 S. W., 294, 40 L. R. A., 212.

No degrees of murder were recognized in this State prior to 1893, and all murder was punishable with death. Tbe act of 1893 created no new crime. It merely classified the different binds of murder, leaving it to tbe petit jury to say of what degree of murder tbe accused is guilty. Pub. Laws 1893, ch. 85; S. v. Ewing, 127 N. C., 555, 37 S. E., 332; S. v. Banks, 143 N. C., 656, 57 S. E., 174. As pointed out above, this Court has held tbat tbe solicitor must send a bill charging murder in tbe first degree, and tbe grand jury must so find it, before tbe solicitor can prosecute tbe accused for murder in tbe second degree. S. v. Ewing, supra. Therefore wben tbe solicitor after arraignment decided to ask for a verdict of murder in tbe second degree only upon tbe evidence, so far as bis fees are concerned be occupied tbe same position as if be bad asked for a conviction for tbe capital felony and secured one for tbe second degree only. We cannot supjiose for a moment tbat wben tbe Legislature divided tbe crime of murder into two degrees it intended as a consequence to reduce tbe solicitor’s fees to $4 in case of a conviction for murder in second degree. This would reduce tbe fee in such cases to a much smaller figure than is allowed in perjury, forgery, counterfeiting, and seven other offenses of much less gravity than homicide, where tbe fee is fixed at $10. Revisal, 2768.

We think, our opinion tbat tbe indictment and arraignment constituted a prosecution for a capital felony, although there was a conviction for murder in second degree, is strongly supported by tbe opinion in Coward v. Commissioners, 137 N. C., 300, 49 S. E., 207, where Ciarle, C. J., says: “The question presented is the liability of the c'ounty of Jaekson for costs of State’s witnesses in S. v. Long, who was indicted in that county for murder, but whose cause was removed to the Superior Court of Macon. After the removal to the latter a nolle prosequi was entered as to murder in the first degree, and the witnesses were subpoenaed to the next term, at which the prisoner was tried for murder in the second degree and convicted of manslaughter. The witnesses for the State were entitled to their mileage and fees in full so long as attending court as witnesses upon the capital charge, including the terms at which the nol. pros, was entered.” In that case there was a trial for murder in the second degree only, and yet the witnesses were allowed full fees so long as attending court upon the capital charge.

We take the true intent and meaning of the law is that the solicitor shall receive $20 for a conviction in a capital felony, and where he indicts and arraigns the prisoner for -the capital felony, and the jury returns a verdict of murder in second degree or manslaughter, the solicitor is entitled to $10 only.

Error.

Clark, C. J\,

dissenting. Rev., 2768, provides that the solicitors shall “receive the following fees and no other.” In the list is the following: “For every conviction upon an indictment which they may prosecute for a capital crime, $20.”

Rev., 3245, provides the form of indictment for murder and Rev., 3271, provides that the same form shall be used, whether it is murder in the first degree or murder in the second degree. In S. v. Ewing, 127 N. C., 555, it was held that the grand jury could not make the distinction by indorsement upon the bill, and in S. v. Hunt, 128 N. C., 589, it was said that when the case is reached for trial the solicitor determined that the trial or prosecution was for murder in the second degree by then so stating. The Court held that “such action was equivalent to a nol. pros, as to murder in tbe first degree,” and that consequently the prisoner was not entitled to a special venire or twenty-three challenges. This has been .approved in S. v. Caldwell, 129 N. C., 683; Coward v. Commissioners, 137 N. C., 300.

In Coward v. Commissioners, 137 N. C., 300, the Court held, approving the above cases, that when a nol. pros, is entered as to murder in the first degree the State’s witnesses subsequently attending are entitled to only half fees. The solicitor having-entered a nol. pros., the prisoner, it was held, was not prosecuted for murder in the first degree and was deprived of all his challenges but four, and of the right to a special venire. After such nol. pros, the witnesses also were not entitled to be considered witnesses in a capital felony, and were deprived of the pay which they would have otherwise received as much.

How, then, can it happen that the solicitor, notwithstanding the nol. pros, entered by him, shall be entitled to pay for prosecuting a capital felony? As to the prisoner, it is held that he was not prosecuted for a capital felony. As to the witnesses, it is held that they are not attending a prosecution for a capital felony. How, then, could the solicitor be prosecuting for a capital felony so as to earn an allowance which is given for. the extra labor involved in prosecuting an offense in which a special venire is ordered, and twenty-three challenges are allowed, and with the responsibilities incident to a trial in which a verdict is sought for a capital offense ?

The grand jury certainly could not prosecute. The bill is a very simple one of a few lines, and is simply a bill for “murder.” It is not a bill specifying either degree of murder, and whether it is to be “prosecuted for a capital felony” or not cannot be determined till the prosecution or trial begins, at which time the solicitor in this case stated that the trial or prosecution would be for “murder in the second degree,” which is not a “prosecution for a capital felony.” The solicitor prosecuted for murder in the second degree and entered of record that he would not prosecute, i. e., would not try the prisoner, for the-capital felony. He cannot be entitled to an allowance for “prosecuting for a capital felony” when he has done nothing of the kind.

Tbe “prosecution” by tbe solicitor means “tbe trial,” and begins only wben tbe trial begins. Tbis is plainly stated by Chief Justice Marshall in Cohen v. Va., 19 U. S., 264, wbo said: “To prosecute a suit is, according to tbe common acceptation of language, to continue a demand wliieb has been made by tbe institution of process in a court of justice.”

It may be that tbe Legislature has not been as liberal to tbe solicitors in tbis respect as they ought to be, and that there ought to be a larger allowance than $4 for prosecuting for murder in tbe second degree, which is the actual service that tbe solicitor in tbis case rendered. But it is for tbe Legislature to fix tbe fees of tbe solicitor, and if they are too low, it is for that body, and not for tbe courts, to amend tbe allowances.

Walker, J.,

concurring in opinion of Chief Justice. I agree that there is error in tbe judgment, but not for tbe reason stated by tbe majority.

Tbe definition in the opinion of the Court of tbe word “prosecution,” as being tbe whole or any part of tbe procedure which tbe law provides for bringing offenders to justice, is statutory and was taken from a Texas enactment. It does not conform to tbe accepted definition of tbe word, but was evidently intended, for some reason, to modify it. Tbe courts have generally adopted Chief Justice Marshall’s definition, as given in tbe opinion of tbe Chief Justice. Tbe Court, in Buecker v. Carr, 60 N. J. Eq., 300, says there is a clear distinction between tbe prosecution of a proceeding or suit and tbe bringing or initiation of it. Tbe same Court held in S. v. McDonald, 2 N. J. Law, 355-360, that “a prosecution is not an action, it is not a suit, for none of our boobs confound it with those two words. It is tbe following up or carrying on of an action or suit already commenced, until tbe remedy be attained.” In Schulte v. Keokuk County, 74 Iowa, 292, a case involving tbe amount of fee due a solicitor, tbe Court adopted tbe definitions of tbe word given by Bouvier and Burrill, substantially tbe same, as follows: “A prosecution is tbe means adopted to bring a supposed offender to justice and iiunishment by due course of law.” Bouvier’s Law Diet.; or “tbe institution and continuance of a criminal suit; tbe process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government, as by indictment or information.” Burrill’s Law Diet. “To prosecute an action or suit is to follow up or to carry on such action or suit.” Inh. of Knowlton Township v. Read. 6 Halst., 321. “The requirement to ‘prosecute’ means that the suit or proceeding shall be followed up to the conclusion, and is not complied with by a return of the suit to the court, for that is but one of the series of acts which go to make up the prosecution of the suit.” Marryott v. Young, 4 Vroom, 337; 6 Words and Phrases, p. 5734. Having regard to its Latin derivation, the word means not to go backward or abandon, but to pursue or to go forward. It clearly involves the idea of continuance, and not suspension. Blackstone and Webster agree that “to prosecute” means “to institute and carry on a legal proceeding.” All this is according to the high authority of Chief Justice Marshall. But our statute plainly contemplates that the indictment shall first be returned by the grand jury and then prosecuted. It so says: “For any conviction upon an indictment which they may prosecute for a capital crime, $20.” As you cannot carry on what is not commenced, the indictment may, in that sense, be a part of the criminal prosecution, but not by any means all of it, and the prosecution intended by the statute is that which follows the finding of the bill. We do not even require the aid of a definition to guide us in ascertaining the meaning of this provision. It sufficiently explains itself.

My strong inclination would be to decide in favor of the full allowance of $20, believing, as I do, that it would be but inadequate compensation for the services rendered in such cases; but the language of the statute is clear and the meaning too plain even for construction. The defendant must be prosecuted for the capital felony to entitle the solicitor to the fee of $20. It seems to me that the expression used, “for conviction in capital felonies,” when providing for half fees, and the other, “for conviction upon an indictment which they may prosecute for a capital crime,” should bare tbe same meaning, and if tbe construction of tbe majority is correct, namely, tbat tbe prosecution intended by tbe statute is tbe commencement of tbe proceeding by tbe finding of tbe bill, tbe solicitor should have tbe full fee of $20, and tbe judgment should, therefore, be affirmed; but for tbe reasons aboye stated, my opinion is tbat tbe solicitor is not entitled to even tbe half of tbe fee of $20, as be did not prosecute for tbe capital crime.

Coward v. Commissioners, 137 N. C., 300, sustains our view. As long as there was a prosecution for tbe capital crime, tbe fees were allowed to tbe witnesses, as claimed by them, but not so after tbe solicitor bad abandoned tbe prosecution for tbe capital felony and bad agreed to prosecute only for murder in tbe second degree. This shows clearly tbat there must be a continuance of tbe prosecution for tbe capital felony in order to entitle tbe solicitor to tbe fee of $20.  