Page:Federal Reporter, 1st Series, Volume 8.djvu/275

UNITED STATES V; STONE. 261 �notes; H. (6th Ed.) 47, 52, 79, and notes; 1 Bish. Crim. Pr. (3d Ed.) § 690. And the Code of Tennessee bas the aame re(5[uireniynt. T. & S. Code, (Tenn.) § 5G96. It is through this smi-official rela- tion to the prosecution that a private prosecutor becomes a person in authority in this matter of the evidence of confessions. But under our federal practice from the earliest times, and by force of the stat- ute, the district attomey is the only prosecutor known to our law; and as a matter of fact, in this court, at least, no private prosecutor bas ever been recognized. Act of 1879, c. 20, § 36, (1 St. 92;) Eev. St. § 771; U. S. y. Mundcl, 6 Gali, (Va.) 245, 247; U. S. v. McAvoy, 4 Blatchf. 418; U. S. v* Blaisdell, S Ben, 132, 143, where the court refused to recognize an agreemeht of the executive department not to prosecute the offender, and said that "when there is no district attomey in commission, the govemment cannot prosecute in this court." 1 Bish. Crim. Pr. § 278 ePeeq. It is impossible, therefore, for any one to occupy the place of a private prosecutor in this court, or to make any promises of immunity that ■will avail the accused in that capacity. It was otherwise at common law; for> generally, if the party injured refused to prosecute, there could be nO prosecution. With us the district attomey alone cafa give such assurances. Neither Bennett or bis principals could, therefore, have such authority over the prosecution as to bring them within the rule we are considering. Being owners of the goods, -without this capacity to control the prose- cution, through the necessity of becoming prosecutor, does not an- swer to make them persons in authority. 1 Whart. Crim. Lawj (7th Ed.) § 692; Id. § 686; Ward y. People, 3 Hill, (N. Y.) 896. The case of Frain v. State, 40 Ga. 529, stating a contrary doctrine, is predicated upon a statute regulating the snbject which aboliehes all distinctions between persons in and not in authority. The statute is quoted in Earp v. State, 65 Ga. 136; S. C. 1 Am. Crim. Eep. 171. The State v. Brockman, 46 Mo. 566, is within the rule, because the owner of the goods vpas a prosecutor. In the State v. Hogan, 54 Mo. 192, the witnesses were the ofiicers of the law con- cerned in the prosecution. It does not appear in State v. Lawhome, 66 N. C. 638, how or by whom the confessions were obtained, and the case involved the admiasibility of subsequent confession; whilein State V. Whitfield, 70 N. C. 356, the owner was the prosecutor. In Flagg v. People, 40 Mich. 706, the prisoner was in arrest and under the control of the officers haviug him in custody. These are the par- ticular Bases so much pressed by counsel, but I do not see that they militate against the views I have here expressed. ��� �