dissenting. Rev., 2768, provides that the solicitors shall “receive the following fees and no other.” In the list is the following: “For every conviction upon an indictment which they may prosecute for a capital crime, $20.”
Rev., 3245, provides the form of indictment for murder and Rev., 3271, provides that the same form shall be used, whether it is murder in the first degree or murder in the second degree. In S. v. Ewing, 127 N. C., 555, it was held that the grand jury could not make the distinction by indorsement upon the bill, and in S. v. Hunt, 128 N. C., 589, it was said that when the case is reached for trial the solicitor determined that the trial or prosecution was for murder in the second degree by then so stating. The Court held that “such action was equivalent to *482a nol. pros, as to murder in tbe first degree,” and that consequently the prisoner was not entitled to a special venire or twenty-three challenges. This has been .approved in S. v. Caldwell, 129 N. C., 683; Coward v. Commissioners, 137 N. C., 300.
In Coward v. Commissioners, 137 N. C., 300, the Court held, approving the above cases, that when a nol. pros, is entered as to murder in the first degree the State’s witnesses subsequently attending are entitled to only half fees. The solicitor having-entered a nol. pros., the prisoner, it was held, was not prosecuted for murder in the first degree and was deprived of all his challenges but four, and of the right to a special venire. After such nol. pros, the witnesses also were not entitled to be considered witnesses in a capital felony, and were deprived of the pay which they would have otherwise received as much.
How, then, can it happen that the solicitor, notwithstanding the nol. pros, entered by him, shall be entitled to pay for prosecuting a capital felony? As to the prisoner, it is held that he was not prosecuted for a capital felony. As to the witnesses, it is held that they are not attending a prosecution for a capital felony. How, then, could the solicitor be prosecuting for a capital felony so as to earn an allowance which is given for. the extra labor involved in prosecuting an offense in which a special venire is ordered, and twenty-three challenges are allowed, and with the responsibilities incident to a trial in which a verdict is sought for a capital offense ?
The grand jury certainly could not prosecute. The bill is a very simple one of a few lines, and is simply a bill for “murder.” It is not a bill specifying either degree of murder, and whether it is to be “prosecuted for a capital felony” or not cannot be determined till the prosecution or trial begins, at which time the solicitor in this case stated that the trial or prosecution would be for “murder in the second degree,” which is not a “prosecution for a capital felony.” The solicitor prosecuted for murder in the second degree and entered of record that he would not prosecute, i. e., would not try the prisoner, for the-capital felony. He cannot be entitled to an allowance for “prosecuting for a capital felony” when he has done nothing of the kind.
*483Tbe “prosecution” by tbe solicitor means “tbe trial,” and begins only wben tbe trial begins. Tbis is plainly stated by Chief Justice Marshall in Cohen v. Va., 19 U. S., 264, wbo said: “To prosecute a suit is, according to tbe common acceptation of language, to continue a demand wliieb has been made by tbe institution of process in a court of justice.”
It may be that tbe Legislature has not been as liberal to tbe solicitors in tbis respect as they ought to be, and that there ought to be a larger allowance than $4 for prosecuting for murder in tbe second degree, which is the actual service that tbe solicitor in tbis case rendered. But it is for tbe Legislature to fix tbe fees of tbe solicitor, and if they are too low, it is for that body, and not for tbe courts, to amend tbe allowances.