State v. Russell

• Decision Date: 25 October 1892
• Citation: 83 Wis. 330,53 N.W. 441
• Parties: STATE v. RUSSELL.
• Court: Wisconsin Supreme Court

83 Wis. 330

53 N.W. 441

STATE

v.RUSSELL.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Report from circuit court, Eau Claire county; W. F. BAILEY, Judge.

Elizabeth Russell was convicted of murder in the first degree. Certain questions are reported to the supreme court for decision before proceeding to judgment. New trial ordered.J. L. O'Connor, Atty. Gen., and J. M. Clancey, Asst. Atty. Gen., for the State.

V. W. James and J. V. Quarles, for defendant.

ORTON, J.

The defendant was tried and convicted of the crime of murder in the first degree, for the killing of one Bertha Erickson by means of poison, in the circuit court of the county of Eau Claire. The case comes to this court under section 4721, Rev. St., on the report of the circuit court of certain questions of law, which, in the opinion of the judge of said court, are so important or so doubtful as to require the decision of this court. It does not appear that the matters of the 2d, 6th, and 7th questions either prejudiced the rights of the defendant or affected the verdict. Those three questions are therefore immaterial, and will not be answered. The first question is as follows: “The district attorney of Eau Claire county having asked the court to appoint W. W. Erwin, a resident of the city of St. Paul, Minn., as counsel to assist said district attorney in the trial of this cause, and objection having been duly taken and entered by the counsel for the prisoner to such appointment, on the ground, as the fact is, that said Erwin was not a resident of the state of Wisconsin, and was not and is not a member of the Wisconsin bar, was it error for the court to make an order authorizing said Erwin to assist as counsel in the prosecution of said cause, the charge made against the accused by the information being murder in the first degree, and said Erwin having participated in the trial for the prosecution, and having examined the witnesses for the state, and having cross–examined the witnesses for the defense, and having taken the leading part in said trial, and practically controlled the management of said cause, on the part of the state, having taken no oath, either as an attorney or any officer within this state? Exception having been duly taken by counsel for the prisoner to the participation of said Erwin therein, was it error for the court to permit said Erwin to so participate in such trial, and has the defendant been prejudiced thereby?” It is understood that the said Erwin was a distinguished criminal lawyer of St. Paul, of great learning and experience. Section 752 a, Sanb. & B. Ann. St., provides that “the circuit judges, within their respective circuits, are hereby authorized, in their discretion, to appoint counsel to assist the district attorney in the prosecution of persons charged with crime, in all cases where the crime charged is punishable by imprisonment in the state prison.” The word “counsel” in this statute no doubt means the “counselor who is associated in the management of a particular cause, or who acts as the legal adviser in reference to any matter requiring legal knowledge and judgment.” Bouv. Law Dict. tit. “Counsel.” It is generally used “of counsel” in a particular case, to distinguish him from the attorney of record; or as the office means in the supreme court of the United States, and in the English practice, he is a counselor at law, in contradistinction to an attorney at law. The counselor conducts the trial and presents the law, while the attorney carries on the practical and formal parts of the suit. 1 Kent, Comm. 307. In the states where these distinctions are disregarded, the one who acts as counsel, or of counsel, is supposed to have superior knowledge and experience in the law and ability to advise in the conduct of the causes. The counselor is a lawyer of the highest dignity. The law says that the court is authorized to appoint counsel “to assist the district attorney” in cases where he needs assistance. It is at least self–evident that such an assistant must be, first, an admitted lawyer or an attorney at law. The attorney general contends that the district attorney himself need not be an admitted lawyer in this state, and that the law does not require it. There is no statute that requires the attorney general to be a lawyer, or the judges of this court to be lawyers. Such a qualification is inherent in the very office itself, and required by the duties to be performed by him. The prosecutor of the pleas of the state is here called the “district attorney.” To be a district “attorney,” he must be a lawyer. He is not an attorney in fact. He must be an attorney at law. The name of the officer implies it. He is the attorney of the state in a certain “district,” to distinguish him from an attorney “general.” When there is no district attorney, or he shall be absent, or has been employed, etc., the court may appoint some suitable person to perform the duties, and he shall have all the powers of such district attorney. Section 750, Rev. St. Could the court appoint a citizen and resident of another state to perform the duties and to have all the powers of a district attorney of this state? Certainly not, any more than the people could elect such a person to the office of district attorney. Neither our laws nor courts recognize any attorneys at law but those of this state, except by special rule of comity or ex gratia. Attorneys must take our constitutional oath, and district attorneys must also give a bond. All others are strangers to our laws and in our courts. But it is plain enough that the assistant counsel of our district attorneys must be attorneys at law, and, if so, they must be of this state. The said Erwin was an attorney of the state of Minnesota, and not an attorney of this state. If he could be appointed counsel to the district attorney of Eau Claire county, so could an attorney of the city of Boston, or of the city of London, for they are all alike foreign attorneys. Our district attorneys are responsible to our people and to our courts, but foreign attorneys are not.

This question was practically settled in Motion to Admit Ole Mosness to the Bar of this Court, 39 Wis. 509. The learned Chief Justice RYAN said: “The bar is no unimportant part of the court, and its members are officers of the court. The general business of the state, within the state, executive, legislative, or judicial, must be performed by citizens or denizens of the state, and the officers charged with it must be resident in the state. But, for all functions within the jurisdiction of the courts, their officers must be residents of the state. It would be an anomaly, dangerous to the safe administration of justice, that the office shall be filled by persons residing beyond the jurisdiction of the court, and practically not subject to its authority.” A foreign counsel may, by special favor, be permitted to appear for his clients in our courts. But he cannot be permitted to assist in discharging the duties and performing the functions of the office of district attorney. This state is not his client. “The public prosecutor is a quasi judicial officer, retained by the public for prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent. * * * He is trusted with broad official discretion, generally subject, however, to judicial control.” Wright v. Rindskopf, 43 Wis. 354. If Mr. Erwin could have lawfully been appointed as counsel to assist the district attorney in the prosecution of the defendant for this highest of crimes, it was perfectly proper that he should take the management of the case, as he did, examine and cross–examine the witnesses, and be the adviser of the district attorney. He ought, at least, to have the qualifications of that officer. Com. v. Gibbs, 4 Gray, 146;Sneed v. People, 38 Mich. 248. In People v. May, 3 Mich. 598, it is held that no person not previously admitted to the bar is eligible to the office of prosecuting attorney, without any special statute to that effect, and that it is implied in his name of office; and that the person appointed as his assistant must have the same qualifications. It was very proper for the legislature to repeal the act requiring such a qualification for a district attorney, for it implied that previously he was not required to be an attorney at law. By his very name he is an “attorney,” and...