#### Commonwealth *versus*James Horton.

file plea of *nolo contendere*to an indictment, hag the same effect as a plea of guilty, so far as regards the proceedings on the indictment; and a defendant who is sentenced upon such a plea, to pay a fine, is convicted of the offence for which he was indicted.

But a plea of *nolo*contendere, with a protestation of the defendant’s innocence, will not conclude him in a civil action from disputing the facts charged in the indictment.

A statute directs that a penalty recovered upon an indictment shall go to the county. The record of a conviction under the statute, which stated that the court directed die fine 66 to be disposed of according to law,” was *held*sufficient.

This was a *scire facias*brought in the Common Pleas upon a recognizance, the condition of which was, that George Lane, who was licensed to retail spirits, should observe the laws relating to such retailers, for one year. The declaration alleged, that Lane had been convicted of breaking the laws in that behalf made and provided, as appears of record, by which means the recognizance was forfeited.

The defendant pleaded, 1. *Nul tiel*record, on which issue was joined : 2. That Lane was indicted for a breach of the iaw relating to retailers, before the Court of Common Pleas ; that when arraigned, he said that he would not contend with the Commonwealth, and it was therefore considered by the court, that Lane should pay a fine of twenty-one dollars and costs, which fine and costs it is averred that he paid.. To this plea there was a general demurrer, on which issue was joined by the defendant.

The record of the proceedings on the indictment against Lane, is in these words : “ And now the said George Lane is set to the bar, and has this indictment read to him ; he says he will not contend with the Commonwealth, with which the attorney for the Commonwealth is content; it is therefore considered by the court here, that the said George Lane pay a fine of twenty-one dollars, to be disposed of according to law, that he pay the cost of this prosecution taxed at sixteen dollars,” &c. The Court of Common Pleas decided both issues against the defendant, and gave judgment against him for $ 33-33J, the penal sum in the recognizance ; from which judgment he appealed to this Court.

*210The case was argued in writing,

*Saltonstall,*for the defendant.

It does not appear Dy the record, that the principal has been guilty of a breach of the recognizance. The whqle proceedings were irregular. The plea, “ he will not contend, ” &c. was no answer to the indictment. It was a mere compromise between the county attorney and the accused. It can at most only amount to an implied confession. The sole object of such an agreement is, that the legal consequences of a conviction may not follow. 1 Chit. Cr. Law, 430 ; Vin. Abr. *Estoppel, F 35, F 36 ;*Com. Dig *Indictment, K; The Queen*v. *Templeman,*1 Salk. 55.

Even if the Court should think this plea amounts to a confession or plea of guilty, the conviction is in other respects irregular, and therefore cannot be made the foundation of a *scire facias*against the surety. There was no judgment that Lane had been guilty of a breach of the condition of the recognizance. 7 Dane’s Abr. 344.

The judgment that the fine should “ be disposed of accord ing to law,” was insufficient; it should have specified how it was to be appropriated ; for in case the conviction is made through an informer, one half of the penalty goes to him, and the other half to the county ; and in case the offence is prosecuted by indictment, the whole goes to the county. *St.*1786, *c.*68, § 20 ; *The King*v. *Dimpsey,*2 T. R. 96 ; *The King*v. *Priest,*6 T. R. 538.

The conviction of the principal on the indictment, is not conclusive evidence of his guilt in this action against the surety.

*Minot,*County Attorney,

cited Cr. Circ. C. 9 ; 2 Hale’s P. C. 225 ; 5 Dane’s Abr. 680, c. 175, *art.*16, § 2 ; Com. Dig. *Pleader, E*42 ; 1 Hawk. P. C. 33, c. 10, § 9 ; *Foster's case,*11 Co. 60.

Putnam J.

delivered the opinion of the Court. The plea Gf *n0i0 contendere*is án implied confession of the offence charged. It is discretionary with the Court to receive it, or not.

The advantage which a party obtains by such an answer properly pleaded, is, that he is not estopped to plead *not guilty*to an action for the same facts, as he would be upon a plea of *guilty.*For in the latter case the entry is “ *quod*cognovit *211*indictamentum,"*but in the former, “ *non vult contendere cum dominá regina, et ponit se in gratiam cur ice."*2 Hawk. c. 31, § 3 ; Queen, v. Templeman, l Salk. 55, *pl.*6

Another advantage of the plea of *nolo contendere*was, that the party might be admitted to prove *son assault*upon the prosecutor, in mitigation of the fine.

In our practice, however, the Court will allow a party to offer evidence in mitigation of the sentence, after the plea of guilty, and *a fortiori,*after a plea of *nolo contendere.*It is only where the party is sued in a civil action for doing the thing for which he was indicted, (as for a trespass, Bro. *Estop, pl.*132 — Vin. *Estop. F, pl.*36,) that the distinction between these pleas is material. The plea of *nolo contendere*pleaded with a protestation that the party was not guilty, would clearly not conclude the party in his defence against the civil action.

But so far as the Commonwealth is concerned, the judgment of conviction follows as well the one plea, as the other. And it is not necessary that the *court*should adjudge that the party was guilty, for that follows by necessary legal inference from the implied confession. But the court thereupon proceeds to pass the sentence of the law affixed to the crime.

Where a party pleads *not guilty*to any matter cognizable before a magistrate, no conviction can be had without an adjudication that the party is guilty. His judgment in such case stands for the verdict of a jury. And after the verdict of the jury, that the party is guilty, is recorded, the court does not further adjudge that the party is guilty, for that sufficiently appears from the verdict. But the court then proceeds (even in capital cases) to pass the sentence, unless some legal reason should be given for the staying of the proceedings.

Another objection is, that the adjudication should have appropriated the fine, and not merely directed it to be distributed according to law. And if this were like the case of *Rex*v. *Dimpsey,*2 T. R. 96, where the appropriation was to be made among several persons *according to the discretion*of the court, it would be clearly bad to leave it to be distributed according to law, without the exercise of any such discretion as the law required. But in the case at bar, the law gives the whole pen-alty to the county, if the prosecution were by the grand jury ; *212and it appeals chat the grand jury did present this case ; adjudging the fine to be distributed according to law, is equivalent therefore to an adjudication that it should, under these circumstances, be paid to the use of the county.

And upon the whole, we do not perceive that the defendant has any legal defence to this suit.

*Judgment for the Commonwealth.*