Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1896-03-20

Hon. j. .. Wharton, District Attorney White
Oaks, N. NJ,
Dear Sir:--i nave received your letter
dated February "a, in which you request
my official interpretation of section II of
the act of February Is, 1889, with refer
ence to duties of district attorneys and
especially as to whether or not district
attorneys can under the law defend par
ties accused of crime outside Of their dis
tricts. Replying beg to say that am
of the opinion that the section referred
to, if it means anything at ALL means that
the district attorney shall defend or as
sist in the defense of no person accused
of crime in New Mexico. Stripping the
section referred to Of some of the words
which, being irrelevant to the present in
quiry, make its ultimate meaning a little
obscure, 1t reads: If " s' +" any district
attorney s. x shall defend y IT any
person accused Of any crime or misde-
meanor in this territory, be shall be fined"
etc. 1t is to be noted that the district at
torney is not debarred alone from defend
ing persons accused of crime sin his dis.
trict," but from those accused of crime
''in the territory The legislature might
have undoubtedly limited the disqualifi-
cation TO criminal cases in the district at
torney's district bnt it can hardly be
doubted, from a careful reading of the
section, that it intended the disq ualifca-
tion to apply to all criminal cases in the
territory. The purpose of the legislature
evidently was thus to ALLEVIATE entirely the
prosecuting department from the defense
of criminals and to leave the several dis
trict attorneys, untrammeled by inter
ests on the other side Of the question, free
to devote their energies to the extermina-
tion of crime. If this was not the pur-
pose of this section, it is difficult to see
what was the purpose of its enactment.
The same law, in preceding section six,
makes it the duty of the district attor-
peys to represent the territory in all
cases, civil and criminal, in all courts of
the counties of their respective districts.
This being the law, it becomes physical,
no less than professional impossibility,
for the district attorney to defend par
ties accused Of crime in his district. The
rule that lawyer can not represent ad-
verse interests concurrently is no less in
exorable in law aud ethics than is the rule
in physics that body can not be at diff
ferent places at the same time. This be-
ing the case, the act OF 1889, independent
of section II, debars the district attorney
from representing parties accused in his
district. If section II is therefore to be
given any efficacy, and laws are always to
be construed SO as to give effect, If pos
sible, to all the provisions thereof, 1t is
to be considered rs extending the dis
qualification already resting upon dis
trict attorneys as to cases in their own
distrIcs to all cases of persons accused of
"misdemeanor or crime in the territory"
The suggestion that the district attorney
ceases to be such when he goes out of his
district is sufficiently answered by the
statement that, under the construction
above given, the legislature has made
him, 80 far as disqualification is con
cerhed "a district attorney for the whole
territory" have gone thus into detail
in the consideration of this question,
first, bt cause Of the considerations, per-
sonal to yourself which you urge in be-
half Of different construction OF the act,
and, second, because of the opinion cited
from Mr.. Dougherty, for whose ability
have high regard. | am authorized to
say that the governor acquiesces in the
conclusions herein reached, both as a
declaration of what is the law and as a
statement of what, in his Judgment, ia a
desirable policy in the administration Of
Justice in New Mexico.
Very respectfully yours,
JNo. p. Vrcroay,
Solicitor General of New Mexico.