
    The State v. Stephen Dillon
    Cbimikal Law. An infant may be prosecutor. Act of 1801, ch. 30. Code % 5097. By the act of 1801, ch. 30, no indictment can he presented to the grand jury without a prosecutor. By section 5097 of the Code, various exceptions are made to this requirement. But in all cases not falling within one of the exceptions made, a prosecutor is still required. An infant is not prohibited by statute, nor by public policy from becoming prosecutor, and may, therefore, be endorsed as such.
    PROM OVERTON.
    The defendant pleaded in abatement, that the prosecutor was an infant. The Attorney General, T. H. Williams, demurred to the plea. The Court, Goodall, J., presiding, overruled the demurrer, and quashed the indictment. The State appealed.
    Sneed, Attorney General, for the State,
    argued that:
    The indictment in this case was quashed on the ground, that the prosecutor was a minor, under the age of twenty-one years.
    
      Can an infant bo a prosecutor ? It has never been held in this State that he cannot, and no good reason can be assigned why he should not. Such a doctrine, in many cases, would exclude him from that protection of his person, - which the law guarantees to all people alike.
    It has been held here, that a feme covert cannot be a prosecutrix. But why ? because she has no separate existence — because her existence is, in legal contemplation, merged in that of her husband.
    The object of a prosecutor, say this Court, is to have before the Court a responsible person, who may not only be held responsible for costs, if the prosecution be malicious or frivolous, but who may be also held amenable for the false imprisonment, &c.; and the reason this Court assigns for excluding a feme eovert is, that she is wholly irresponsible in law for costs or damages. Moyers v. State, 11 Hum., 40. But an infant is responsible for costs. See the case of Beasley v. State, where it is said, that “ our practice has been uniform in making no distinction between infant and adult defendants in respect to costs.” See act of 1813, ch. 136, § 2, cited 1 Meigs’ Dig., page 616; Moyers v. State, 11 Hum., 40; -Beasley v. State, 2 Yer., 481.
    J. W. McHeNRY, for the defendant,
    said:
    The act of 1801, eh. 30, sec. 1, provides: “No State’s Attorney shall prefer a bill of indictment to any grand jury in this State, without a prosecutor marked thereon.” Is a minor a competent and legal prosecutor within the meaning of the foregoing act ? We are not aware that this question has ever been before this Court. The object of the section quoted, say this Court, in the case of Moyers v. State, 11 Hum., 42, “is to have before the Court a responsible person, who may not only be held subject to the payment of costs, in the event the prosecution shall turn out to be frivolous or malicious"; but who may likewise be held amenable to the injured party, for the false imprisonment or malicious prosecution.” The case cited, was one where a married woman was marked as prosecutrix; but the reasoning and policy of the act would seem to apply to infants. The effects and consequences likely to be entailed on infants themselves, as well as the whole community, by holding them competent prosecutors of crime, are obvious. If a minor under twenty-one is competent, the infant of seven is likewise. If he is competent to prosecute, then he is liable to costs in the event the prosecution should turn out to be frivolous or malicious, in contravention of the general doctrine, that he is not liable for costs, and must sue by his guardian or next friend. In addition, he may be subjected to suits for malicious prosecution and false imprisonment. He may be made the dupe and the instrument of the revenge and malice of designing and corrupt men, and thereby ruined in his estate. On the other hand, the community will not be exempt from consequences of a serious character, from the deposition of the prosecuting power in the hands of infants. Their rashness and immaturity of judgment will lead them, in many cases, unadvisedly to prosecute alleged offences, not justified by the proof or circumstances of the case. In view of these effects and consequences, likely to result from the construction, of the foregoing statute contended for by the State, we infer that infants were not embraced therein by the Legislature.
   Oahuthers, J.,

delivered the opinion of the Court.

The only question in this case is, can an infant be a prosecutor? The indictment was for obstructing a public road; a plea in abatement was filed, setting up the minority of the prosecutor, a demurrer to which was overruled by the Court, and judgment given for the defendant.

By the act of 1801, ch. 30, no indictment could be preferred to the grand jury without a prosecutor, but to this, various exceptions were afterwards made by the Legislature; these, by the last act, the Code, amount to twenty-one. Sec. 5097. But the case of obstructing roads is not one of them, and still requires a competent prosecutor. So if a minor cannot prosecute, the judgment must be affirmed. This question has not before come up for adjudication.

It was held, in Moyers v. The State, 11 Hum., 41, that a feme covert could not be a prosecutrix. The reason assigned was, that she was not liable for costs in case the prosecution were “frivolous or malicious,” as provided by act of 1794, ch. 1, sec. 76, nor amenable to the defendant for false imprisonment or malicious prosecution. It is insisted, that the same reasons apply to a minor, and render him incompetent to prosecute. But is this so? We think not. He is liable for costs, and for trespass and torts. Beasley v. The State, 2 Yer., 481, and authorities there cited.

If then he is excluded from the right to prosecute, it is not upon the reason applicable to a married woman. As a new and open question much may be said on both sides. The considerations presented by the defendant’s counsel, on the ground of policy are entitled to much weight. They have reference, Loth t© his own safety, and the danger to others and the public by the presumed want of discretion and judgment in an infant. But on the other hand, as contended with great force by the Attorney General, he, more than those of mature age, needs the protection afforded by the criminal laws, for the security of his rights, both of person and property. Why should he not be allowed to call into action the power of the State to avenge his wrongs, or protect his rights, as well as others, being responsible, as well as they, for the abuse of the privilege?

As to any danger to himself or others, or to the State, that would be avoided generally by the supervision of the Attorney General and the Court.

Not being deprived of this common right to prosecute offenders, by any statute or decision, or public policy, we do not feel authorized or inclined to add this to the long list of the recognized disabilities of infancy.

The judgment will be reversed, the demurrer to the plea sustained, and the cause remanded for trial.  