
    Chambers vs. The State.
    3. Any sheriff, coroner or constable who shall bid at his own sale, either for himself or for another, is indictable by virtue of the act of 1805, ch. 31, N. & C. 180.
    2. Any licensed attorney may, with the consent of the court and State’s attorney, aid in the prosecution of offenders. In such case the defendant has no right to object.
    The grand jury of Campbell county, at the September term of the circuit court, 1841, indicted John Chambers.
    The indictment charges, that Chambers, a constable of Campbell county, duly commissioned, and having an execution in his hands in favor of Wheeler & Cotton against one John Honeycutt, “did in the said county, on the - day of-, 1841, by virtue of said execution, sell two stacks of fodder, the property of said Honeycutt, to satisfy the said execution, and at the sale aforesaid, the said Chambers, constable as aforesaid, unlawfully did bid at said sale for said fodder, it being the sale of said Chambers, constable,” &c. &c.
    
      The defendant pleaded not guilty; issue was joined and the case submitted thereupon to a jury at the May term, 1842, R. M. Anderson, judge, presiding.
    John Netherland, a licensed attorney, proposed to appear on behalf of the State, Gray Garrett, the attorney general for the district, being present and consenting thereto. This was objected to by the counsel of defendant. The objection was overruled by the court, and Netherland aided in the prosecution of the case.
    It appeared by the testimony, that Chambers was a constable of Campbell county; that he received the execution mentioned in the indictment, and levied it on two stacks of fodder, the property of Honeycutt; that he offered the fodder for sale, and at the sale made a bid therefor. He was asked if his bid was made for himself. He said no. That he had bid for one Pennington. The fodder was knocked off'at a subsequent and higher bid, to his son-in-law.
    The judge was requested to charge the jury, that to make out the offence set out in the indictment, it must be made to appear that the defendant bid for himself. This the judge refused to do, and charged them, that if the defendant bid at his own sale, he was guilty of an indictable offence, though he may have bid for another.
    The jury returned a verdict of guilty. A motion for a new trial, and also in arrest of judgment having been made and overruled, and defendant fined ten dollars, he appealed in error to the supreme court.
    
      John Nelson, for plaintiff’ in error.
    1. The indictment in this case does not charge the defendant with any offence. It merely charges him with bidding at his own sale. It should have gone further, and charged him with bidding for his own benefit. The act of 1805, ch. 31, creates an offence unknown to the common law, and should be strictly construed. The bidding of sheriff, coroner or constable at his own sale is not malum in se. This statute was enacted upon considerations of public policy alone. It was enacted to prevent the officer from buying in property at reduced prices for his own benefit. He could not do this if he did not bid for himself but for another. He could never be under improper influences in the discharge of his public duties. The indictment not charging the facts which make out the character of bidding prohibited by the statute, it is not good.
    All that the indictment charges may be true, and the defendant may be innocent, notwithstanding. 2 Yerg. 22, 233: Mar. & Yerg. 94.
    2. John Netherland appeared and aided in the prosecution. The defendant, by his counsel, objected to the appearance of said Netherland. The court overruled the objection.
    This was erroneous. The framers of our State constitution deemed the regulation of this matter a subject of such vital importance as to be worthy of notice in our fundamental law.
    The 9th section of the declaration of rights provides, that “in all criminal prosecutions the accused hath a right to be heard by himself and his counsel.”
    This was intended to secure an inestimable privilege to defendants in State cases, and to place it beyond the reach, even, of legislative encroachment. The knowledge of the oppresions of the crown in Great Britain, in depriving the subject of counsel in treason and felony, no doubt was the origin of this clause in our bill of rights. “I take it to be a settled rule of the common law, that no counsel shall be allowed a prisoner, whether he be a peer or a commoner, upon the general issue on an indictment of treason or felony, unless some point of law arise proper to be debated.” 2 Hawkins, 654: 4 Black. 286: 1 Ry. & M. C. C. 166.
    On the other hand, whilst it was intended that defendants should be secure in this right, it was also provided, that the State should be represented, and offenders prosecuted by a permanent officer on behalf of the government. The 5th section of the 6th article of the constitution is as follows: -
    “The legislature shall elect attorneys for the State by joint vote of both houses of the general assembly, who shall hold their offices for the term of six years. In all cases where an attorney for any district fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore."
    
    This clause contemplates a division of the State into districts, and one attorney elected by the legislature to appear on behalf of the State in each district. It also is manifest that the court has no power to appoint an attorney onbehalf of the State, except in the- event of the failure or refusal of the individual elected by the legislature to attend and prosecute. It is manifest also=, that by the terms of the clause the court has the power'to appoint only one attorney for the State, when the contingency arises for the exercise of the power. This limitation of the power of the judge presiding, was no doubt intended to protect the defendant against oppression. Will it be contended that a circuit judge would have the power under this clause to appoint a dozen attorneys to prosecute an offender? Certainly not. Then if the judge has no power under the constitution to appoint more than one prosecuting attorney, how is it that he can communicate the -authority to any licensed attorney to appear that may choose to present himself? Where is any power given to the judge to act, except the power conferred in the constitution? None is given. By what provision of the constitution, by what statute or principle of the common law is the attorney general authorized to give a warrant of attorney to an attorney to appear in the case? None can be found by which he is authorized to employ assistant counsel or give such authority to appear. The prosecutor is not a party to the prosecution, and can communicate no authority to- any one to appear.
    The attorney general is the sole representative in England of the crown. 1 Burrow. So here he is the sole representative of the State.
    The constitution also prescribes that this officer shall take an oath to support the constitution of the State, of the United States, and an oath of office.
    These oaths are safe-guards thrown around the legal and constitutional rights of the defendant, as well as the rights of the State. See 3 Iiaywood.
    Has the defendant the same guaranty, that none of his legal and constitutional rights will be taken from him when he is prosecuted by those who are not under the responsibility of an official oath? Certainly not.
    
      Attorney General, for the State.
    
      J. A. McKinney, for the plaintiff in error.
   TüRley, J.

delivered the opinion of the court.

This is an appeal in the nature of a writ of error, from a judgment of the circuit court of Campbell county, upon a bill of indictment against plaintiff in error, a constable of said county, for bidding at his own sale. There is some proof tending to show, that the bid was made by the constable, not for himself, but for a third person who was not present, and had authorized him to make it.

The judge charged the jury, tliaL though the bid.iverc made by the constable for a third person, and not for himself, he is yet guilty of a misdemeanor for which he is liable to punishment by indictment. The correctness of this charge depends upon the construction of the act of 1805, ch. 31, which creates the offence. The act provides, that “if any sheriff) coroner or constable shall bid or purchase at their own sales, by themselves or airy person or persons -for them, or their benefit, all such sales or purchases shall be void, and all persons concerned in any such sales shall be liable to an indictment for a misdemeanor.”

The intention of this act was to prevent, persons, conducting execution sales, from haviirg any inducement to act'unfairly, by striking off the property before it had commanded its full value. It, therefore, forbids the officer from bidding or buying, and makes it indictable to do either; but it is argued that the bidding must be for the benefit of the officer, or it is not within the statute. To this we answer, that the permitting an officer to bid at his sale for a third person, is in our opinion calculated to produce all the evils intended to be remedied by the statute and that it is within the express words of the statute, and, therefore, governed by it.

Upon the trial in the court below John Netherland, an attorney of the court, appeared as an assistant of the attorney general in conducting the prosecution. Objection was taken to his appearance, unless he produced authority from the State for so doing. This objection was overruled and the appearance permitted, and this is assigned as error. The appear-ahee of more than one attorney on each side of a case, is a matter within the discretion of the court. Every man has a right to be heard by attorney, but not by more than one, unless by permission, and a refusal is no cause of error, for which a judgment can be reversed.

In the case of Gillespie vs. The State, 3 Yerg. 325, it is said, that the State may employ a licensed attorney of the court to assist in the prosecution, but that if it be required, he must produce his authority. We do not concur in the opinion announced in the latter part of this sentence. The attorney general represents the State? he institutes the proceeding, and is responsible for the manner in which it is conducted. He must be heard. The court have no power to refuse him. He must have been legally appointed, and the court have a right to the evidence of his appointment. But as has been observed, if a licensed attorney appear as an assistant, he may be heard or not, at the discretion of the court, with or without authority, if the attorney general consent. So it is in civil cases; the attorney who brings the suit must produce bis authority if required, because he represents the person suing,, and he shall not implead any individual without authority; but the authority to commence the suit being produced, all danger of a false suit is removed; there is then no reason to call for the authority of assistant counsel, who may appear by the permission of the court and the assent of the attorney general. Let the judgment be affirmed.

Note. — In a criminar case,, not more than two will be allowed to manage the prosecution on behalf of the government. Commonwealth vs. Knapp, 9 Pick. 496.

As to appearance and the authority so to do in civil case, see 3 Monroe, 194: 1 Bailey, 488: 7 Har. & J. 275: 16 Serg. & R. 388.

The court may at any time call upon the plaintiff’s attorney for his warrant to sue, but if satisfied, either by the production of the warrant or even by parol' evidence, that the attorney acts by authority, they will not in a summary way arrest the proceeding. King of Spain vs. Oliver, 2 Washington C. C. 429.  