Phillips County v. Jackson

• Decision Date: 24 February 1908
• Citation: 108 S.W. 212,85 Ark. 382
• Parties: PHILLIPS COUNTY v. JACKSON
• Court: Arkansas Supreme Court

108 S.W. 212

85 Ark. 382

PHILLIPS COUNTY v. JACKSON

Supreme Court of Arkansas

February 24, 1908

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

Reversed and remanded.

R. W Nicholls and John I. Moore, for appellant.

The act of May 1, 1905 (Acts 1905, p. 560), does not apply to Phillips County, hence the statute, Kirby's Digest § 6387, 6390, inclusive, controls. Under these statutes, appellee is not entitled to recover unless he shows that the defendants for whose conviction he claims fees (1) pleaded not guilty, (2) demanded a trial, and (3) secured the service of an attorney to represent them.

No officer of this State is allowed fees except such as are expressly authorized by statute. For what is necessary to authorize an allowance, see 57 Ark. 487.

Bevens & Mundt, for appellee.

Sections 6388, 6389, authorize the deputy prosecuting attorney to file information in certain cases, and make it his duty to be present and prosecute in the event of a plea of not guilty. On a plea of guilty, after information filed, the full duty of the deputy has been performed, and he is entitled to his fee.

Section 6390 was evidently intended to cover cases where information has been filed by some other person than the deputy prosecuting attorney himself.

OPINION

MCCULLOCH, J.

The point involved in this appeal is whether or not a deputy prosecuting attorney is entitled to a fee for conviction in a criminal case before a justice of the peace where he filed an information, and a warrant of arrest was issued thereon, and conviction followed upon a plea of guilty. That officer filed the information in this case and appeared in the prosecution, but there was no trial, for the reason that the defendant entered a plea of guilty.

Section 6388 of Kirby's Digest authorizes deputy prosecuting attorneys to file informations before justices of the peace charging persons with the offenses of carrying weapons unlawfully, the unlawful sale of or being interested in the sale of intoxicating liquors, violation of the blind tiger act, or gambling. The two succeeding sections of the statute are as follows:

"Sec. 6389. Whenever any person shall have been arrested under a warrant issued in accordance with the preceding section, and shall plead not guilty and demand a trial on the charge therein, it shall be the duty of the deputy prosecuting attorney to attend and prosecute such charge on behalf of the State, and in the event of a conviction he shall be allowed the same fees as are now allowed in similar cases in the circuit court.

"Sec. 6390. In any criminal action pending before any justice's court, where the defendant is charged with any offense mentioned in section 6388 by affidavit or otherwise, and shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of the justice to cause the prosecuting attorney, or deputy for such county, to be notified of the nature of the charge and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and in case of conviction shah be allowed the same fee as is now allowed for similar cases in the circuit court. And no prosecuting attorney or his deputy shall receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute."

The concluding paragraph of section 6390, providing that no prosecuting attorney or his deputy shall receive any fee unless they personally appear and prosecute in a case manifestly applies to both of the two sections just...