dissenting.
I cannot agree to all the conclusions of my associates, expressed in the opinion in this case, and will briefly state my reasons therefor.
1. While the statute is silent as to the duties of county attorneys in criminal cases, where the venue is changed, yet I do not think it was the purpose of the legislature to deprive the county attorney of the county from which the change is taken, of the right or authority to appear in the district court of the county to which the cause is removed, and of which court he is an officer, and prosecute persons accused of crimes alleged to have been committed in the county of which he is the attorney. While it is true that this is not shown to be a case in which there was no competent attorney of Pawnee county who might have been appointed as county attorney for that county for the purpose of prosecuting the case, yet just such a case might arise and the due adminstration of the law would be effectually prevented; for, if the theory of the majority is correct, no other could be appointed and the state would be without a prosecutor, as, if the attorney in charge of the prosecution must be the county attorney, either elected or appointed, of the county where the trial is had, no other one could act. A distinction between the county attorney and other county officers exists in this: the county attorney is as much an officer of the district court of one county as another, while other county officers are limited in all things *747to the territorial boundaries of their own county and therefore have no authority to act outside of that particular jurisdiction. While it may not be a duty specially enjoined by law upon a county attorney to follow civil and criminal prosecutions into counties to which causes are set for trial, yet I am far from believing that such action on his part could vitiate a verdict and require a new trial where the state or county had been successful. Having had charge of the case from the beginning, and having become familiar with the questions of law and fact involved, which are in many cases quite complicated, it would in many instances be a virtual surrender of the case to change attorneys and place the prosecution or defense into the hands of an attorney who knew nothing of the facts and was not specially prepared in the law of the case. It must be remembered that if it is error to allow him to follow a criminal case, it would be equally erroneous to allow him to follow a civil cause. It is held in this case as in the eases cited that the county attorney “ may have the assistance of counsel employed on private account.” The attorneys employed in this case were of the Richardson county bar, none of them, I think, being residents of Pawnee county. The mere fact that they were not the attorneys for the county, duly elected and qualified, is their only passport to the court of Pawnee county and their admission to the control and management of the prosecution of plaintiff in error. This I do not think is the rule. If the law is as claimed, it should be amended at the earliest practicable date.
In State v. Carothers, 1 G. Greene [Ia.], 464, it was held, under a statute somewhat similar to our own, that it was not only the right of the county attorney to follow a cause into acounty to which the venue was changed, but that it was his duty to do so.
2. Section 579 of the .Criminal Code requires the prosecuting attorney to subscribe his name to the information and “ indorse thereon the names of the witnesses known to hi tn *748at the time of filing the same; and at such time before the trial of any case, as the court may by rule or otherwise prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.”
By this provision it seems to me the matter of the indorsement of the names of additional witnesses is left to the sound discretion of the trial court, subject only to the requirement that such indorsement shall be made before the trial. I find no provision requiring it to be “in time to give the accused notice in season to anticipate their presence before trial,” and I know of no authority to inject' these words into the statute.
3. Section 413 of the Criminal Code provides that “ Whenever on trial of any indictment for any offense there shall appear to be any variance between the statement in such indictment and the evidence offered in proor thereof in the Christian name or surname, or both Christian and surname, or other description whatever of cmyperson whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant unless the court before which the trial shall be had shall find that such variance is material to the merits of the case, or may be prejudicial to the defendant.”
There never has been any question as to the identity of J. M. Thayer, neither has there been nor could there be any question as to his being the person referred to in the indictment as John M. Thayer. He testified in substance that he signs his name and is known as J. M. Thayer. The whole case shows that the variance in the name of the witness by using the word “John” instead of “Jerry” could not have been in any degree prejudicial to plaintiff in error, and if the section which we have quoted means anything, it is that the administration of the criminal laws of this state shall not be prevented when no actual prejudice results to the accused.