Gaulden v. State

By the Court.

Warner, J.

delivering the opinion.

[1.] The question made in this case is, whether a Solicitor Gen-feral who, in his official capacity, has drawn an indictment against a defendant or defendants, and prosecuted the same, as j counsel for the State, can be permitted, after the expiration of his term of office, to take a fee from the defendant or defendants, in such indictment, and appear as his or their counsel, for the purpose of defending him or them, on the trial, for 'the accusation ' contained therein ? The practice in most of the Circuits of this State, so far as we know or believe, has heretofore uniformly-been, to allow the Solicitor General to appear as counsel for the defendants against whom billg of indictment had been preferred during his term of office. In this case, the former Solicitor General has only done what has heretofore been the general practice in most of our Circuit Courts ; but upon what principle this practice has been allowed to prevail, we are not advised. The question has, however, now been presented for our consideration and judgment, and we are bound to decide it according to our view's of right and public policy. It is urged in behalf of the former Solicitor General, that in his official capacity, he must be considered as standing indifferent between the people of the State and the defendant who is indicted; that when his successor has been elected and qualified, the State is to be considered as having discharged him from her service, and therefore, he is at liberty to appear as counsel for the defendants whom he prosecuted while in office. Admitting, that in his official capacity, he is supposed to stand indifferent, so far as his personal feelings are concerned, yet, he is not the less the counsel for the State on that account, and must necessarily become familiar with the facts of the case upon which the State relies for a successful prosecution of the indictment. His position, as the counsel for the State, enables him to learn the difficulties which may stand in the way of the conviction of one who is really guilty, which no other person would be as likely to know, for the reason, that his communication with the prosecutor, the witnesses, and the Grand Jury, afford him the means of ascertaining many facts, which only those who are officially connected with the government, can know. Shall he be permitted to make use of the privilege thus officially conferred upon him, while in the discharge of his duties as counsel for the State, for the purpose of defending those who have been accused of crime during his official term of office, and that, too, for a reward paid by them to him, for such service ?

Neither can the Solicitor General, on the expiration of his term of office, properly be considered as having been discharged, by the State. The contract between him and the State is, that he will perform certain duties enjoined by law, for a specified term of time, for a stipulated compensation. Upon the expiration of the period of time for which he ¿was elected, he is out of office, by the express terms of the contract. The State does not discharge him, but his term of service expires, by the express stipulation of the contract made between himself and the State; and hence, the want of any analogy between such a contract and a contract with a private citizen for professional services, who discharges his counsel from his case before the termination of the suit in which he is employed. The administration of the law should be free from all temptation and suspicion, so far as human agency is capable of accomplishing that object; and in- our judgment, public policy most emphatically demands, that a Solicitor General who has been employed by the State, to prosecute defendants for a violation of her laws, for the compensation affixed by law, should not be allowed to defend such defendants from the charge contained in the indictment, after the expiration of his term of office, for a compensation to be paid by them for that purpose. Such a practice will have a tendency to greatly embarrass the administration of the Criminal Law; for, as the term of the office of Solicitor General is about to expire, prosecutors and others, who maybe intrusted to prosecute offenders, will necessarily be restrained from communicating freely with the State’s counsel, when he may be employed at the next term of the Court, to defend the indicted culprit. It is no sufficient answer to say, that the law will not allow him to disclose any fact which may have been communicated to him, as the counsel for the State, to her prejudice. If he knows the vulnerable points in the case, derived by his official connexion with it, there are many ways by which those points might be made available to the defendant on his trial, by-his counsel, besides disclosing them as a witness. If he has knowledge of facts, derived from his official connexion with the prosecution, which will operate to the prejudice of the State, and he is permitted to act as counsel for the defendant, that knowledge will be made available in the defence; therefore, we place our judgment on the ground, that public policy forbids that a Solicitor General who has prosecuted a defendant for a violation of the law, by preferring an indictment against him, should appear as his counsel to defend him from the charge, after the expiration of his term of office. We take pleasure in stating, that in the present instance the plaintiff in error has only pursued the general practice which has heretofore prevailed in most of the Circuits of this State, and that no positive abuse of his professional confidence has been made to appear, and none is imputed to him in this case, by the judgment whicl], we have felt it to be our dutytc^ award; but we affirm the judgment of the Court below, as before stated, on the ground of public policy, irrespective of the particular facts of this case.