PROSECUTOR. One who prosecutes an other for a crime in the name of the govern ment.
The public prosecutor is an officer ap pointed by the government to prosecute all offences: he is the attorney-general or his deputy.
A private prosecutor is one who prefers an accusation against a party whom he sus pects to be guilty.
Every man may become a prosecutor ; but no man is bound, except in some few of the more enormous offences, as treason, to be one; but if the prosecutor should compound a felony he will be guilty of a crime. The prosecutor has an inducement to prosecute, because he cannot, in many cases, have any civil remedy until he has done his duty to society by an endeavor to bring the offender to justice. If a prose cutor act from proper motives, he will not be responsible to the party in damages though he was mistaken in his suspicions: but if, from a motive of revenge, he insti tute a criminal prosecution without any reasonable foundation, he may be punished by being mulcted in damages, in an action for a ,malicious prosecution (q, v.).
In theory of law in England, any member of the community can prosecute a criminal. In felony, it is the duty of a person injured in person or property to prosecute, or to give information to the police; but there is no such duty in misdemeanors. The police may act as they see fit. By acts in 1879 and 1884, a public prosecutor is provided who insti tutes and carries on prosecutions in any court under the supervision of the attorney general. He may take a case out of the
hands of a private prosecutor or of the police. The vast bulk of prosecutions ate by private prosecutors.
In State v. Tighe, 27 Mont. 327, 71 Pac. 3 (a capital case), the court upheld the prac tice' of private counsel acting for prosecutors, saying that it had existed in Montana for forty years. Milburn, J., dissented on the ground that the private prosecutor repre sents vengeance, while the state's attorney represents justice. The practice exists in many states; see State v. Bartlett, 55 Me. 200; Keyes v. State, 122 Ind. 527, 23 N. E. 1097. It does not exist in Massachusetts, Michigan and Wisconsin.
In Pennsylvania, a defendant is not bound to plead to an indictment, where there is a private prosecutor, until his name shall have been indorsed on the indictment as such, and on acquittal of the defendant, in all cases except where the charge is for a fel ony, the jury may direct that he shall pay the costs. See 1 Chitty, Cr. Law 110; Haught v. Com., 2 Va. Cas. 3; The King v. Lukens, I Da11. (U. S.) 5; Allen v. Com., 2 Bibb (Ky.) 210; U. S. v. Mundel, 6 Call (Va.) 245, Fed. Cas. No. 15,834; Bish. Cr. Pro. 691; DISTRICT ATTORNEY OF THE UNITED STATES; INFORMER.