Illness may cause district attorney to be absent.

- Sickness or any other malady, bodily or mental, may cause the solicitor general (now district attorney) to be absent. Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493 (1857); Butts v. State, 90 Ga. 450, 16 S.E. 96 (1892).

City court judge may appoint solicitor (now district attorney) pro tem. Horton v. State, 11 Ga. App. 33, 74 S.E. 559 (1912); Holt v. State, 11 Ga. App. 34, 74 S.E. 560 (1912).

No interference with discretion of court unless abused.

- Discretion of the court in appointing a solicitor general (now district attorney) pro tem will not be interfered with unless the court's discretion is abused. Statham v. State, 41 Ga. 507 (1871).

Propriety of appointment is largely in discretion of trial court and the appellate courts will not interfere with the discretion unless the court's discretion is abused. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

Appointee is officer de facto.

- When appointment is made, appointee is officer de facto for any official purpose, and the appointee's acts are legal, even if there be some error in the appointment. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

"District attorney pro tempore."

- Attorney General or members of the attorney's staff did not act as a "district attorney pro tempore" subject to a grand jury's investigation when under requisition of the governor to serve as a state prosecutor. In re Floyd County Grand Jury Presentments for May Term 1996, 225 Ga. App. 705, 484 S.E.2d 769 (1997).

Appointment of private attorney as district attorney pro tem.

- Trial court did not err when the court appointed a private attorney to participate in a re-sentencing hearing as the district attorney pro tem, especially if the attorney was a former assistant district attorney and had represented the state during the defendant's original trial. Smith v. State, 234 Ga. App. 213, 505 S.E.2d 858 (1998).

Appointed attorney not precluded from private practice.

- Attorney appointed by a presiding judge as a part-time district attorney pro tempore assigned pursuant to O.C.G.A. § 15-18-27(a) to prosecute criminal acts allegedly committed by a district attorney and/or the district attorney's staff is not precluded from the private practice of criminal law for the duration of the appointment. State v. Redd, 243 Ga. App. 809, 534 S.E.2d 473 (2000).

Retained counsel to assist in trial.

- Solicitor general (now district attorney) may retain counsel to assist in trial of case; it is not necessary that the retained counsel's services be commanded by the presiding judge. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

District attorney may assist in trial in another circuit.

- Solicitor general (now district attorney) in a judicial circuit of this state is not disqualified by the provisions of Ga. Const. 1976, Art. VI, Sec. XI, Para. II (see now Ga. Const. 1983, Art. VI, Sec. VIII, Para. I), former Code 1933, §§ 24-2908, 24-2913, and 24-2914 (see now O.C.G.A. §§ 15-18-5 and15-18-6), or by any other law to appear before the courts of a different judicial circuit at the request of the prosecution on a trial for murder, and assist the solicitor general (now district attorney) of the latter circuit in the prosecution, notwithstanding the last mentioned officer is not indisposed, or disqualified from interest or relationship, or absent from the circuit, and such assistance is not requisitioned by the presiding judge. Floyd v. State, 182 Ga. 549, 186 S.E. 556 (1936).

Solicitor general (now district attorney) of another circuit may, at the request of the prosecution, appear and assist in the trial although not requisitioned by the judge, even though the solicitor general (now district attorney) of the trial circuit is not indisposed. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

Oath of assisting prosecuting counsel is not required. Lindsay v. State, 138 Ga. 818, 76 S.E. 369 (1912).

Phrase "disqualified from interest" construed.

- Phrase "disqualified from interest," used in this section, means a "personal interest," and a solicitor (now district attorney) is not disqualified from personal interest in a case if the solicitor was not acting in the solicitor's personal or individual character, or for the solicitor's personal or individual interest, but in the solicitor's character as an officer of the law specially charged by statute to perform this particular duty. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937); State v. Davis, 159 Ga. App. 537, 284 S.E.2d 51 (1981).

Public prosecutor is necessarily partisan in case.

- While the prosecuting officer should see that no unfair advantage is taken of the accused, yet the prosecuting officer is not a judicial officer; the public prosecutor is necessarily a partisan in the case, and if the prosecutor were compelled to proceed with the same circumspection as the judge and jury there would be an end to the conviction of criminals. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

Disqualifying interest or relationship not defined.

- While the Code recognizes a disqualification of a solicitor (now district attorney) because of interest or relationship, it does not define what interest or what relationship will disqualify the solicitor. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

Personal interest may disqualify.

- If prosecuting attorney has personal interest, it may disqualify the prosecuting attorney. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

Involvement in offense under investigation.

- If the prosecuting attorney personally is involved in the offense under investigation, the prosecuting attorney should not be allowed to advise the grand jury and secure a bill. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

Representation of victim in divorce proceeding involving accused.

- Public policy prohibits a district attorney from prosecuting a case, even though the district attorney does not actually try the case personally, while representing the victim of the alleged criminal act in a divorce proceeding involving the accused. Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981).

Relationship to stockholders.

- Solicitor general (now district attorney), related to stockholders in a corporation which owned the stock of another corporation alleged to have been cheated and defrauded, was not disqualified to appear before the grand jury to obtain such indictment, or to prosecute the case before a jury, it not appearing that in doing so the solicitor general was actuated by personal interest in the matter. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

No interest found.

- Solicitor general (now district attorney), though depositor of bank, may prosecute director thereof. Stapleton v. State, 19 Ga. App. 36, 90 S.E. 1029 (1916); Spence v. State, 20 Ga. App. 61, 92 S.E. 555, cert. denied, 20 Ga. App. 832, 92 S.E. 555 (1917).

Interest is absent if solicitor general (now district attorney) signed indictment in that capacity, and then signed as prosecutor. Pinkney v. State, 22 Ga. App. 105, 95 S.E. 539 (1918).

Cited in Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964); In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975); Carroll v. State, 147 Ga. App. 332, 248 S.E.2d 702 (1978); Rutledge v. State, 245 Ga. 768, 267 S.E.2d 199 (1980); McGraw v. State, 199 Ga. App. 389, 405 S.E.2d 53 (1991); Cramer v. Spalding County, 261 Ga. 570, 409 S.E.2d 30 (1991); McPherson v. State, 274 Ga. 444, 553 S.E.2d 569 (2001); State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

"Competent attorney" defined.

- "Competent attorney" under former Code 1933, §§ 24-2913 and 24-2914 (see now O.C.G.A. § 15-18-5) would be one who meets the qualifications for the office of district attorney set forth in former Code 1933, § 24-2901 (see now O.C.G.A. § 15-18-3). 1977 Op. Att'y Gen. No. U77-50.

District attorney still paid by state if substitute appointed.

- Once a district attorney pro tempore has been appointed, the district attorney is still paid by the state if the district attorney has not resigned or abandoned that office. 1977 Op. Att'y Gen. No. U77-50.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Prosecuting Attorneys, §§ 16, 17.

C.J.S.

- 27 C.J.S., District and Prosecuting Attorneys, § 81 et seq.

ALR.

- Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial - state cases, 78 A.L.R.3d 297.

Validity, under state law, of appointment of independent special prosecutor to handle political or controversial prosecutions or investigations of persons other than regular prosecutor, 84 A.L.R.3d 29.

Validity, under state law, of appointment of special prosecutor where regular prosecutor is charged with, or being investigated for, criminal or impeachable offense, 84 A.L.R.3d 115.

Appealability of state court's order granting or denying motion to disqualify attorney, 5 A.L.R.4th 1251.

Disqualification or recusal of prosecuting attorney because of relationship with alleged victim or victim's family, 12 A.L.R.5th 909.

Disqualification of prosecuting attorney in state criminal case on account of relationship with accused, 42 A.L.R.5th 581.

What circumstances justify disqualification of prosecutor in federal criminal case, 110 A.L.R. Fed 523.