Meister v. People

• Decision Date: 12 January 1875
• Citation: 31 Mich. 99
• Court: Michigan Supreme Court
• Parties: Leizer Meister and another v. The People

31 Mich. 99

Leizer Meister and another v. The People

Supreme Court of Michigan

January 12, 1875

Heard October 23, 1874

Error to Saginaw Circuit.

Judgment reversed, and the verdict set aside.

Gaylord & Hanchett, for plaintiff in error.^[+]

Wisner & Draper, for the People.

OPINION

Campbell, J.:

The respondents below were all tried and convicted of the offense of burning certain insured property, in the city of Saginaw, on the 22d day of June, 1873, with intent to defraud certain insurance companies named in the information. There was no evidence to convict Leizer Meister or William Meister with the burning, as principals present at the fact. The case proceeded throughout on the claim that Rosa Meister, the wife, and Bertha Meister, the sister of William Meister, who occupied the premises, set the property on fire in the absence of the others; and that William and his father Leizer, who lived at some distance off, procured the burning.

At the opening of the trial an objection was made that counsel had been retained by private prosecutors, and at their expense, to aid in conducting the prosecution. Defendants offered to show this fact, and asked to have one of the assisting counsel sworn, who declined to be sworn, and the court refused to require him; and the prosecuting attorney stating the gentlemen referred to were acting at his request, the court permitted them to assist, and overruled the objection. This question has never been presented to the court before. Under the English practice, prosecution by private parties has been the rule rather than the exception, and there is no public prosecutor who has general charge of criminal business. The necessity of such an officer has been urged repeatedly by many of the ablest jurists; and the chief reason suggested has been the abuse of criminal proceedings for private ends, and the subordination of public justice to private control.

In this country we have usually had in every state some officer, or class of officers, appointed for the express purpose of managing criminal business; but the extent and nature of their powers and duties have not been uniform. Sometimes the officers have been permanent, and sometimes counsel have been appointed by the courts to act for the term; and the duties have often been left under vague regulations. Under our territorial statutes, and until the Revised Statutes of 1838, the legislation was not very specific. But by the Revised Statutes of 1838 a regulation was introduced, that was borrowed from the laws of Massachusetts, and that has been preserved ever since. The prosecuting attorney of each county is required to prosecute all criminal cases in the courts of his county, and may be required also to appear for the same purpose before any magistrate, except in certain municipal courts. And he is expressly debarred from receiving any fee or reward from any private person for any services within his official business, and from being retained, except for the public, in any civil action depending on the same state of facts on which a criminal prosecution shall depend.--C. L., §§ 529, 530, 534.

The courts may appoint counsel to act in his place when he is absent or unable to perform his duties, or where the office is vacant; but no other power of appointment is given. Any recognition of other counsel, if valid, can only be by the request of the prosecuting attorney. He cannot abdicate his duties, and the court cannot divide or relieve them, or give to other counsel any authority whatever, independent of his responsibility.--U.S. v. Morris, 1 Paine 209; Hite v. State, 9 Yerg. 198; Com. v. Knapp, 10 Pick. 477; Com. v. Williams, 2 Cush. R., 582.

The question, therefore, seems to narrow itself to the inquiry whether or not the persons allowed to act at the request or by the assent of the prosecuting attorney are subject to any restrictions applicable to him, or whether they may act without reference to their relations to private parties.

It has been quite common in this state for prosecuting attorneys to be aided by counsel, and probably in some cases they have had the help of those retained by private prosecutors. As no objections have been taken in these cases, and no attention has been called to the statute, it cannot be said there has been any practical construction of the statute, and we are obliged to consider the case as one requiring the law to be enforced according to its fair meaning.

The mere appointment of public prosecutors is not inconsistent with private prosecutions, either separately or under official supervision. When the crown officers intervene at common law, they must, as we suppose, have control of the proceedings. The proposals in England to establish a new system do not aim at entirely destroying the right of private prosecution.--See Edinburgh Review, No. 220, Art. 2, on Criminal Procedure in England and Scotland. But so long as the present system exists, it appears to make it not only the right, but the duty, of individuals to complain of felonious crimes; and the disability against bringing private actions before prosecuting for felonies was imposed to encourage such complaints, and to ensure private diligence in bringing offenders to justice. The premiums offered to informers stand on a similar footing.

The policy of allowing qui tam actions has not been encouraged in this state, and criminal penalties have been devoted to public purposes. Neither is the felonious character of an injury held to prevent an action before, any more than after a criminal prosecution. And one of the reasons given for this is the establishment of public prosecutors.-- Hyatt v. Adams, 16 Mich. 180.

It is impossible to account for the change in our statutes requiring the exclusive control of criminal procedure to be in the hands of public officers who are forbidden to receive pay or in anyway become enlisted in the interests of private parties, unless we assume the law to have been designed to secure impartiality from all persons connected with criminal trials. The law never has prevented, and does not now prevent, private complaints before magistrates, who have a discretion in regard to calling in the prosecuting attorney. In the ordinary course of things the case for the prosecution is brought out on that examination, and justice requires that it should be, where a defendant does not waive examination. But when the charge is presented on which the respondent is to be tried at the circuit (where he must be tried for all statutory and common-law felonies, except petit larceny), the law requires the public prosecutor to assume and retain exclusive charge of the cause, until the case is ended by acquittal or conviction. The chief dangers which the statute intends to guard against must be those attendant on the trial, inasmach as the preliminary proceedings usually determine the nature and extent of the accusation, and those may be under the charge of private parties. And we must conclude that the legislature do not consider it proper to allow the course of the prosecuting officer during the trial to be exposed to the influence of the interests or passions of private prosecutors. His position is one involving a duty of impartiality not altogether unlike that of the judge himself. We have had occasion heretofore to refer to this duty in these officers of justice. Their position is a trying one, but the duty nevertheless exists, and the law has done much to remove hindrances to its performance, and in no case more plainly than by the prohibition in question here, and that against allowing a circuit judge to act as counsel in his own court, before another judge, as was done in Bashford v. People, 24 Mich. 244. See for illustrations Wellar v. People, 30 Mich. 16; Wagner v. People, 30 Mich. 384; Hurd v. People, 25 Mich. 405.

The courts of Massachusetts have passed upon their statute several times. It was first brought to their attention in the case of Commonwealth v. Knapp, 10 Pick. R., 477 where it appeared that Mr. Webster had aided without objection in the trial of the principal felon whose accessories were on trial, and that reliance had been had on his aid in the case at bar, and that he was acting without any pecuniary inducement. The court, under these circumstances, holding it had a right to allow the prosecuting officer to obtain help in a proper case, considered it admissible in that instance, but reserved their opinion as to any different circumstances, and laid stress upon the absence of any interest in Mr. Webster beyond "a disinterested regard for the public good." In Commonwealth v. Williams, 2 Cush. 582, a similar course was sustained, but the court said it could only be allowed for stringent reasons, and referred again to the absence of any pecuniary compensation from any private individual. They said that such counsel is not under ordinary circumstances to be permitted, yet, when sanctioned by the court under the limitations suggested, it would not furnish sufficient ground for setting aside the verdict. In Commonwealth v. Gibbs, 4 Gray 146, a conviction was set aside because the court had, in the absence of the district attorney, appointed counsel to act in his place, who had been retained by private parties in civil litigation of the same matter. In Commonwealth v. King, 8 Gray 501, a gentleman was allowed to act as counsel who had acted in aid of the prosecution on the preliminary examination, and had also sat upon a commission of inquest concerning the fire which was the occasion of the prosecution. The court held this peculiar familiarity with the facts would make his help valuable; and no suggestion was made by anyone that he was not disinterested, as no suggestion was made by anyone that he was not...