State v. Gonzales

• Decision Date: 01 January 1862
• Citation: 26 Tex. 197
• Parties: THE STATE v. LUTERIO GONZALES.
• Court: Texas Supreme Court

26 Tex. 197

THE STATE

v.LUTERIO GONZALES.

Supreme Court of Texas.

1862.

The right of the person acting as district attorney to discharge the duties of that office cannot be brought in question by motion to quash an indictment, or by plea thereto, based upon allegations of legal incapacity in the person so acting as district attorney; nor was it proper to quash or set aside an indictment because the person acting as district attorney was not authorized by law to officiate in that capacity.

An indictment is the act of the grand jury, under whose direction it is part of the duty of the district attorney to prepare indictments; but the powers and duties of a grand jury do not cease because there may happen to be no district attorney.

In case of a vacancy in the office of district attorney, or of the temporary disability of the incumbent of that office, or in any particular case wherein special reasons exist why such incumbent should not act, any other competent person may be authorized by the court to act as district attorney in preparing indictments.

APPEAL from Nueces. Tried below before the Hon. John F. McKinney.

The appellee was indicted for horse stealing at the fall term of the Nueces district court.

He filed the following plea: “And comes the defendant in proper person and says that J. B. Murphy, who wrote out this indictment, and whose name is officially signed thereto, after his appointment, election or commission as district attorney of this judicial district, was appointed and did accept and qualify himself for the office of ‘receiver,’ under an act of the congress of the Confederate States of America, entitled ‘An act for the sequestration of the property and effects of alien enemies,’ etc.; and that said office is one known as an office of trust and emolument. And the defendant further says that the said J. B. Murphy, receiver, as aforesaid, was present at the deliberations of the grand jury on their finding in this cause, and used illegal and undue influence therein. Wherefore he prays that this indictment be quashed, etc.”

The district attorney demurred generally, but no disposition of the demurrer appears in the record.

The pleading of the defendant being treated as a motion to quash, it was admitted by the district attorney that he was, and previous to the finding of the indictment had been, appointed a receiver of the Confederate States, and had duly qualified as such. On the part of the defense, it was admitted...