State v. Borgstrom
| Decision Date | 02 November 1897 |
| Docket Number | 10,845--(29) |
| Parties | STATE OF MINNESOTA v. PETER J. BORGSTROM |
| Court | Minnesota Supreme Court |
Defendant was indicted and convicted in the district court for St. Louis county of the crime of misappropriating public moneys to his own use, and from a judgment, Moer, J sentencing him to pay a fine of $ 500, and to be confined in the state penitentiary one year, he appealed. Affirmed.
At the trial defendant requested the court to charge as follows:
The court's refusal so to charge forms the basis of defendant's assignments of error 29 and 31.
Order affirmed.
Dibell & Reynolds, for appellant.
It is submitted that defendant's objection to Mr. Baldwin's acting as prosecuting attorney should have been sustained for the following reasons: (1) The public prosecutor is, under our system of jurisprudence, a judicial officer, acting for the public impartially, fairly, unbiased, protecting the wrongfully accused as well as punishing the unquestionably guilty, and not serving at the instance of private persons or to accomplish their ends, but only for the public good. (2) Mr. Baldwin was not entitled to be considered in the light of such a public prosecutor, but rather as the attorney of certain interested private parties employed to convict and not to protect, and his connection with the case was an impairment of defendant's rights. State v Russell, 83 Wis. 330; Biemel v. State, 71 Wis 444; People v. Hendryx, 58 Mich. 319.
H. W. Childs, Attorney General, and C. O. Baldwin, acting in place of the County Attorney, for the State.
Mr. Baldwin's appointment to act in the place of the county attorney was made under and pursuant to G. S. 1894, § 813, and was a matter resting in the sound discretion of the district judges.
On February 6, 1897, the defendant, Peter J. Borgstrom, was indicted by the grand jury of St. Louis county, charged with having committed the crime of misappropriating money received by him as register of deeds of said county. The amount so appropriated by him was alleged to be the sum of $ 63.25, which he had received as such register for making and certifying that certain copies of instruments were true copies thereof, as recorded in said office of register of deeds. Upon trial the defendant was found guilty, and sentenced to pay a fine of $ 500, and be confined in the state penitentiary at hard labor for the term of one year. From this judgment Borgstrom appeals to this court.
At the time of the finding of this indictment and trial of this action, the county of St. Louis had a duly elected and acting county attorney; but, for some reasons which do not appear in the record, he did not appear or in any way participate in the prosecution of the defendant either before the grand jury or subsequently on the trial of the action, although he was actually present in the court during the trial of the defendant upon the charge set forth in the indictment. On January 25, 1897, three of the district judges of St. Louis county made an order in these words:
Subsequently on March 22, 1897, one of the three judges made a further order appointing said Baldwin to act in the place of the county attorney upon the trial of defendant under the indictment against defendant; and Baldwin acted accordingly, the county attorney taking no part in the trial. Objections were duly made by defendant to Baldwin's acting as county attorney and overruled by the trial court, and this ruling is assigned as error.
It is contended by defendant that the county attorney was neither absent nor disabled, but was present in court at the term at which the indictment was found and on the trial of the action, but was never consulted about, or had anything to do with the prosecution of, the case. The record sustains this contention; but it is silent as to whether Baldwin was ever requested to prosecute the action or assist the county attorney in the prosecution thereof. We assume that no such request was ever made, and it is a matter of regret that the grounds or reasons for the appointment of Mr. Baldwin to act in the place and stead of the county attorney in the prosecution of this case do not appear in the record. If sufficient grounds had appeared affirmatively, the authority for such appointment would unquestionably be found in G. S. 1894, § 813, which reads as follows:
"That the several judges of the district courts in this state may, by order to be duly entered on the minutes, at any term of the court appoint any attorney of the court to act as, or in place of, or to assist the county attorney in any business or proceeding before the grand jury or in court, whether there be a county attorney present at such term or not; and the person so appointed shall take the usual oath of office, and shall thereupon be fully authorized to be present before the grand jury at any time when the county attorney might by law be present before that body: provided, that no compensation shall be paid by the county to such person so appointed by the court to assist the county attorney, when that officer is present at the term when such appointment is made, except the same be paid with the consent of the county attorney and be deducted from the regular salary of that officer."
The record then presents the question whether the trial court could legally appoint Baldwin to act as or in place of the county attorney, in the absence of any showing that he was absent, unable to act, or in any manner disqualified to act as such county attorney. It may be contended with some reason that the appointment arbitrarily by the court of an attorney to act in the place of the county attorney, and thus displace him, without apparent cause or reason, does injustice to a public officer whose sworn duty it is to act for the public welfare as well as to protect the innocent and wrongfully accused. There are but few more important offices in the state than that of county attorney, requiring, as it does, learning, ability and a high degree of personal integrity. Nor should his rights as county attorney be unjustly ignored. A county attorney is presumed to be ready and willing to perform his official duties, but as against this presumption in this case, or for some good reason, stands the order of the district judges appointing Mr. Baldwin, not to conduct or prosecute cases generally, but for the investigation of certain unlawful acts of any of the officials of St. Louis county, and act as such attorney in the trial of any indictments which shall be found by said grand jury as the result of such investigation. Although the county attorney was present at the term of court when the indictment was found and trial thereon had, it does not appear that he offered to prosecute the case in any manner, either alone or with assistance of another attorney; nor did he object to the appointment by the court of Mr. Baldwin to act in his place as county attorney, and hence he must be deemed to have acquiesced in such appointment.
Under the express provisions of the statute and the nonaction of the county attorney in the premises, we are of the opinion that the district court was fully warranted in its appointment of Mr. Baldwin. The presumption is in this case that it had sufficient ground and good cause for making such appointment, and, in doing so, it only exercised a proper and lawful discretion in the administration of justice. A public offense appears to have been committed by one, if not more, of the county officials; and his remaining passive, instead of being active, in the prosecution of these wrongdoers, authorized the inference that the public welfare demanded the appointment of another attorney to act in the place of the county attorney. It does not rest with the defendant in a criminal trial to select a prosecuting attorney. That responsibility belongs to those who must see that the laws are duly enforced. A proper regard for the law and the position which the county attorney occupied required him to offer to prosecute this case, or state the reasons for not doing so, or object to others taking his place, if there were good grounds for so doing; but some undisclosed reasons caused him to remain silent when he should have spoken, and we are of the opinion that the public welfare demanded that the trial court do just what it did in appointing Mr. Baldwin as such attorney.
It is also assigned as error that the court erred in admitting...
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