concurring in opinion of Chief Justice. I agree that there is error in tbe judgment, but not for tbe reason stated by tbe majority.
Tbe definition in the opinion of the Court of tbe word “prosecution,” as being tbe whole or any part of tbe procedure which tbe law provides for bringing offenders to justice, is statutory and was taken from a Texas enactment. It does not conform to tbe accepted definition of tbe word, but was evidently intended, for some reason, to modify it. Tbe courts have generally adopted Chief Justice Marshall’s definition, as given in tbe opinion of tbe Chief Justice. Tbe Court, in Buecker v. Carr, 60 N. J. Eq., 300, says there is a clear distinction between tbe prosecution of a proceeding or suit and tbe bringing or initiation of it. Tbe same Court held in S. v. McDonald, 2 N. J. Law, 355-360, that “a prosecution is not an action, it is not a suit, for none of our boobs confound it with those two words. It is tbe following up or carrying on of an action or suit already commenced, until tbe remedy be attained.” In Schulte v. Keokuk County, 74 Iowa, 292, a case involving tbe amount of fee due a solicitor, tbe Court adopted tbe definitions of tbe word given by Bouvier and Burrill, substantially tbe same, as follows: “A prosecution is tbe means adopted to bring a supposed offender to justice and iiunishment by due *484course of law.” Bouvier’s Law Diet.; or “tbe institution and continuance of a criminal suit; tbe process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government, as by indictment or information.” Burrill’s Law Diet. “To prosecute an action or suit is to follow up or to carry on such action or suit.” Inh. of Knowlton Township v. Read. 6 Halst., 321. “The requirement to ‘prosecute’ means that the suit or proceeding shall be followed up to the conclusion, and is not complied with by a return of the suit to the court, for that is but one of the series of acts which go to make up the prosecution of the suit.” Marryott v. Young, 4 Vroom, 337; 6 Words and Phrases, p. 5734. Having regard to its Latin derivation, the word means not to go backward or abandon, but to pursue or to go forward. It clearly involves the idea of continuance, and not suspension. Blackstone and Webster agree that “to prosecute” means “to institute and carry on a legal proceeding.” All this is according to the high authority of Chief Justice Marshall. But our statute plainly contemplates that the indictment shall first be returned by the grand jury and then prosecuted. It so says: “For any conviction upon an indictment which they may prosecute for a capital crime, $20.” As you cannot carry on what is not commenced, the indictment may, in that sense, be a part of the criminal prosecution, but not by any means all of it, and the prosecution intended by the statute is that which follows the finding of the bill. We do not even require the aid of a definition to guide us in ascertaining the meaning of this provision. It sufficiently explains itself.
My strong inclination would be to decide in favor of the full allowance of $20, believing, as I do, that it would be but inadequate compensation for the services rendered in such cases; but the language of the statute is clear and the meaning too plain even for construction. The defendant must be prosecuted for the capital felony to entitle the solicitor to the fee of $20. It seems to me that the expression used, “for conviction in capital felonies,” when providing for half fees, and the other, “for conviction upon an indictment which they may *485prosecute for a capital crime,” should bare tbe same meaning, and if tbe construction of tbe majority is correct, namely, tbat tbe prosecution intended by tbe statute is tbe commencement of tbe proceeding by tbe finding of tbe bill, tbe solicitor should have tbe full fee of $20, and tbe judgment should, therefore, be affirmed; but for tbe reasons aboye stated, my opinion is tbat tbe solicitor is not entitled to even tbe half of tbe fee of $20, as be did not prosecute for tbe capital crime.
Coward v. Commissioners, 137 N. C., 300, sustains our view. As long as there was a prosecution for tbe capital crime, tbe fees were allowed to tbe witnesses, as claimed by them, but not so after tbe solicitor bad abandoned tbe prosecution for tbe capital felony and bad agreed to prosecute only for murder in tbe second degree. This shows clearly tbat there must be a continuance of tbe prosecution for tbe capital felony in order to entitle tbe solicitor to tbe fee of $20.