Nichols v. State

Russell, C. J.,

dissenting. I concur in the ruling in the first headnote, to the extent that I agree that uj)on well-settled principles a solicitor-general is disqualified to represent the State in a prosecution in the result of which he is interested either directly or indirectly. I favor the broadest construction of the foregoing rule of disqualification which will insure absolute impartiality in the trial of every person charged with crime. I think a proper plea in abatement, based upon the ground that the solicitor-general, J. M. Lang, was disqualified, by his interest in the civil case named (which was contingent upon recovery), from preparing the indictment or from conducting the prosecution against one who was charged with perjury, in delivering false testimony *611in the very case in which the solicitor had a contingent interest, should have been sustained. However, since no rule is better settled or more salutary than that if the judgment of the lower court is for any reason right, it will not be set aside upon review, and since the plea in abatement is in my opinion plainly subject to demurrer upon the ground that the last twelve pages thereof (which relate solely to alleged acts of the person who held the office of solicitor-general, which were disconnected with the finding of the accusation and which tended by suggestion to illustrate the interest of the State’s counsel) are irrelevant, immaterial, and scurrilous; and as there was no offer to amend the plea by striking these recitals, I think the trial judge was fully authorized to strike the entire plea. Furthermore, I am unable to concur in the implication which may appear to be sanctioned by the language used in criticism of the conduct of the solicitor-general. For these reasons I feel constrained to dissent from the judgment of the majority.