(concurring).
I fully concur in the opinion of the majority. However, the shocking injustice of this prosecution requires further note.
The complaining witness is the mother of the district attorney for Orleans Parish.
It cannot be supposed that the district attorney was surprised by his evidence. If all things testified to by the witnesses had occurred in Orleans Parish, there would still have been no crime committed by the defendant. Mrs. Garrison owned no movable or immovable involved in this transaction. The most that she could be said to own .was a right of action (on the value of which we express no opinion) ; she lost nothing she ever owned; she still has every right she ever had.
This was a criminal prosecution for debt, not contemplated by R.S. 14:68 nor any other law of this State. The statute requires the misuse of a thing “which belongs to another.” There was never any currency, as charged in the bill of Information, involved in the transaction. A check — a credit — not owned by Mrs. Garrison was deposited by the defendant. The deposit became a credit — again not owned by Mrs. Garrison.
Judge Alvin V. Oser, one of the criminal district judges who sat on the Appellate Division in this case, filed an instrument recusing himself because he was an assistant district attorney prior to June 18, 1969, when he became a judge. The next day he filed a “Motion to Rescind Recusation” and reinstated himself, because this “is not a case that I had personal knowledge of.”
Article 671 of the Code of Criminal Procedure, paragraph (3) would not require personal knowledge of the case if the judge had “been associated with an attorney during the latter’s employment in ' the cause.” If this case had been in 'the district attorney’s office prior to June 18, 1969 (not an unreasonable assumption) the judgé was right the first time, and should have allowed his recusation to stand.
After the trial and after the conviction had been affirmed by the Appellate Division, but before the judgment became final; *795the defendant suffered the ultimate indignity: he was arrested and jailed on a warrant issued by Judge Malcolm V. O’Hara, the trial judge. On application to this court by the defendant on January IS, 1971, he was ordered released from the custody of the sheriff.
Defendant is an attorney at law, whose reputation, according to testimony adduced at the trial, was excellent. Now his name will appear.in a reported decision; he goes free, but on what the wary and suspicious may call a “technicality.”
It is easy to see why the duty of a district attorney differs from that of an ordinary lawyer. A lawyer is free to be a partisan on behalf of his client, and partisanship is a part of advocacy. But the district attorney’s duty is to seek justice, not merely to convict. The prosecutor represents the State, and should use restraint in the discretionary exercise of governmental powers. He should not institute criminal charges when the charges are not supported by probable cause. (ABA Code of Professional Responsibility, Canon 7, EC 7-13; Disciplinary Rule 7-103 (A)).
When the district attorney prosecutes a creditor of his mother for acts requiring novel and strained interpretations to bring them within criminal statutes, the prosecution is reprehensible.