Tbe fees of tlie solicitor in tbis case are fixed by tbe following paragraphs, section 2768 of tbe Eevisal: “Tbe solicitors shall, in addition to tbe general compensation allowed them by tbe State, receive tbe following fees, and no other, namely:
“For every conviction upon an indictment which they may prosecute for a capital crime, $20.
“Tbe fees in all tbe above cases are to be taxed in'the costs against the party convicted; but where tbe party convicted is insolvent, tbe solicitor’s fees shall be one-half, to be paid by tbe county in which tbe indictment was found, except that for convictions in capital felonies., forgery, perjury, and conspiracy, when they shall receive full fees.”
Tbe record in tbis case raises only one point, viz.: Is tbe solicitor entitled to full fee of $20 for each defendant or to only $10, half fees?
It is admitted by tbe counsel for tbe appellants, the commissioners, that tbe solicitor is entitled to $10, half fees, for each defendant convicted in this case.
Tbe prosecution, as commenced by bill of indictment, was undoubtedly for a capital crime, but the conviction was for murder in tbe second degree, which is not a capital crime. It would therefore seem plain that under tbe express language of tbe act, tbe defendants being insolvent and tbe county taxed with tbe costs, tbe solicitor is entitled to only half fees, admitted by appellants to be $10 in each case.
There was no conviction for a capital felony,. and therefore tbe case is not brought within the exception contained in tbe statute.
Since tbe division of tbe crime of murder into two degrees, tbe solicitor’s fees have remained unchanged. It requires about as much labor to convict of murder in second degree as of tbe capital crime, and a conviction for tbe former should be put on tbe same basis as forgery, perjury, and conspiracy; but that can be done only by tbe Legislature.
It is suggested that tbe solicitor never prosecuted an indictment for a capital crime, and that be is entitled to only $4. We are of opinion that be commenced a prosecution upon an in*480dictment for a capital crime, and tbat bad be convicted tbe defendants of tbe capital felony be would bave been entitled to $20 for eacb defendant; but as be did not so convict, be is entitled to only balf tbat sum. Tbe jiroseeution commenced wben tbe solicitor drew tbe indictment for murder, a capital felony, and sent it to tbe grand jury. Tbe prosecution for a capital felony continued wben the bill was returned a true bill and tbe solicitor caused tbe'prisoners to be arraigned, as tbe record shows, for a capital felony. “Prosecution is the whole or any part of tbe procedure which the law provides for bringing offenders to justice.” Words and Phrases, vol. 6, p. 5131, citing Ex parte Fagg, 38 Tex. Cr. R., 573, 44 S. W., 294, 40 L. R. A., 212.
No degrees of murder were recognized in this State prior to 1893, and all murder was punishable with death. Tbe act of 1893 created no new crime. It merely classified the different binds of murder, leaving it to tbe petit jury to say of what degree of murder tbe accused is guilty. Pub. Laws 1893, ch. 85; S. v. Ewing, 127 N. C., 555, 37 S. E., 332; S. v. Banks, 143 N. C., 656, 57 S. E., 174. As pointed out above, this Court has held tbat tbe solicitor must send a bill charging murder in tbe first degree, and tbe grand jury must so find it, before tbe solicitor can prosecute tbe accused for murder in tbe second degree. S. v. Ewing, supra. Therefore wben tbe solicitor after arraignment decided to ask for a verdict of murder in tbe second degree only upon tbe evidence, so far as bis fees are concerned be occupied tbe same position as if be bad asked for a conviction for tbe capital felony and secured one for tbe second degree only. We cannot supjiose for a moment tbat wben tbe Legislature divided tbe crime of murder into two degrees it intended as a consequence to reduce tbe solicitor’s fees to $4 in case of a conviction for murder in second degree. This would reduce tbe fee in such cases to a much smaller figure than is allowed in perjury, forgery, counterfeiting, and seven other offenses of much less gravity than homicide, where tbe fee is fixed at $10. Revisal, 2768.
We think, our opinion tbat tbe indictment and arraignment constituted a prosecution for a capital felony, although there *481was a conviction for murder in second degree, is strongly supported by tbe opinion in Coward v. Commissioners, 137 N. C., 300, 49 S. E., 207, where Ciarle, C. J., says: “The question presented is the liability of the c'ounty of Jaekson for costs of State’s witnesses in S. v. Long, who was indicted in that county for murder, but whose cause was removed to the Superior Court of Macon. After the removal to the latter a nolle prosequi was entered as to murder in the first degree, and the witnesses were subpoenaed to the next term, at which the prisoner was tried for murder in the second degree and convicted of manslaughter. The witnesses for the State were entitled to their mileage and fees in full so long as attending court as witnesses upon the capital charge, including the terms at which the nol. pros, was entered.” In that case there was a trial for murder in the second degree only, and yet the witnesses were allowed full fees so long as attending court upon the capital charge.
We take the true intent and meaning of the law is that the solicitor shall receive $20 for a conviction in a capital felony, and where he indicts and arraigns the prisoner for -the capital felony, and the jury returns a verdict of murder in second degree or manslaughter, the solicitor is entitled to $10 only.
Error.