Daily national Republican. [volume] (Washington, D.C.) 1862-1866, 1865-10-25
LOCAL N Il w = .
LAW PoIN r.
Tho Lusby Case-The Pleadisg Before
IL Il .lu1ue HNHlla. WV

fondAnt was tfleu on an 1nulctment lot tne m"
der OF this little girl, and was acquitted. That
acquIttal could not be given In evidence on the |
trial Of the defendant for the commission Of the
rape, because this last question was not tried In |
that case, nor would II have been lawful for the |
Jury to hnd him guilty or TO acquit himpf this
oifense upon this trial The Indictment Is there
fore before the coprt as though there had been NO
trial for the murder The defendant has not YET
been arraigped, nor has he pleaded to this In |
dlciment. The District Attorney now moves the |
court to enter nolle Prose9uf in the case Of rape
The noIis pros, II allowed, will be the act OF
the, court, and will Put an end to this % prose.
less the court so orders 1t. This motion I'M |
plies that much. II is an application 10 effect
by the District Attorney to the Court, that the
court shall make this order. IL the sole author
ity in this matter rested with the District Attor-
ney, he might, In his own discretion, order the
clerks to dismiss the proceeding without apply.
ing to the court. This he does not purpose, but
asks the court to enter this notte pros.qnf.
This responsibility Is with the court, aud the
court ought not to make the order without salts
factory reason shown. In the Queen Is. Parker,
Modern Rep, case ll6, the Court OF the Queen .
Bench directed that "nolte Iroselui ought not
10 be entered upon an indictment, bat upon mo-
tion In court and leave thereby obtained. " Holt
was Chief Justice at that time, and the decision
entitled to great respect; The Sovereign herself
was presumed to be sitting in her own court
Her attorney, of his own will, could not ter
inmate prosecution In which the public
had an interest, and which had been
without her leave, given through the Judges
who represented her person In the Court. II was
the duty and the Office Of the Attorney General to
prosecute indictments, but he had no power TO
compromise, settle, or discontinue without her
The act Of the 9th Of February, 1901, section 0,
brightly, p. 236) provides for the appontmer. OF
a District Attorney for the District Of Colunol a,
who shall take the oath and perform the dc es
required Of the District Attorneys Of the Uf led
States.
The act Of the oath Of September, l7se, section
3j, brightly. p. 22I) defines In brief Language
the duties and powers OF the District Attorneys oil
the United States. as follows: /
"There shall be appointed in each district
meet person, learned In the law, to act as Attor-
ney for the United States in such district, who
shall be sworn or affirmed to the faithful execu-
ton Of his once; whose duty It shall be to pros
ecute in such district all delinquents for crimes
and offences cogniIable under the authority Of
the United States, and all civil actions In which
the United States shall be concerned.
The duty and power OF the District Attorney
here Is therefore merely to prosecute. He cannot
compromise, settle, or discontinue any prosecu.
tion, without leave obtained from the court and
even in the latter case-that Of disseminating a
prosecution by entering . nOtte prOsequt-the
act is not his act, but the act and Judgment OF
the court He may make motion to the conrt
for that purpose, as has been done In this case
but there can be no judgment that nolte pros
e9ui be entered, except by the act OF the court
itself. His motion Is powerless, except to bring
the subject before the court for decision.
II, then, the nolis proseQut be Judgment OF
the Court, the Court has the right and the power
10 refuse to make the order unless 1t be satisfied
as to Its propriety.
am aware that the late Chief Justice fancy
when ho was Attorney General Of the United
States, in an opinion dated 2Sth Decemt er, 1881,
expressed different opinion; but even In that
opinion he conceded that the Court might refuse
for satisfactory reasons to direct the nofte prose-
gui to be entered on the motion Of the District
Attorney. And It seems to me that this qualin-
cation Of the power OF the District Attorney
proves that the power does not belong to the
District Attorney at all, but belongs to the Court
In the present case the District Attorney has
not succeeded in satisfying the Court Of the
propriety Of the present motion. No reasons
whatever have been filed, and none have been
given In any form, except that the defendant has
already been tried and acquitted on the indict-
ment against him for the murder Of octavia Ros-
seau, and that the present indictment for rape
was found upon that same evidence by the grand
jury. ~
In answer to these reasons, I have to say
!. That the acquittal In that case was most
unexpected by the Court
o That in the present case the defendant has
not yet been arraigned, nor has he pleaded to
the Indictment; and 1t may be, that when
arraigned he will plead guilty to the indictment,
and therefore the proper time for entering the
nOLLe proSequi has not arrived. 3d. II Is possl-
BILE and even probable that before the time Of his
trial upon the present indictment arrives new
Ith. That the crime In question was one Of the
most horribly hendish that has ever shocked the
sensbilities or awakened the fears OF any com
muuity for the safety Of the persons and lives OF
tieiT young and helpless children and that this
prosecution ought not to be dropped and this de-
iendant turned loose upon the community so long
as there remains good grounds for reasonable
suspicion that after all that has takon place the
trial for murder, he may ultimately be dtsooy-
cred to be the monster who has committed this
crime heretofore without parallel on earth. And
last, the defendant Is now at large on bail, and
will therefore not be deprived Of his liberty by
the decision Of the Court overriding the present
motion. ANDREW WfLlE.
After the decision given by Justice wylie,
The following paper was offered to be filed by
District Attorney Carrington:
IN the Criminal Court " The District or Cotnm-
2, 2,si4-Indictment for Rape.
Aud now, that is to say onlthis 2jth day Of oc-
tober, In the year 1865, In open court cometh the
United States District Attorney, Edward G. Car.
riugtou, who for the United States In this behalf
proseouteth and saith that he, the said District
Attorney, will not further prosecute the said
John 7. Lusby on behalf Of the said United States
on the indictment In the above entitled case.
Therefore let all further proceedings be altogether
stayed here in court against him, the said John
F. Lusby, upon the indictments Aforesaid.
EDWARD G, CARRIsaTOS,
U. s. Attorney for ID. G.
Upon the back Of which is the following en-
dorsement: $780,.
''The clerk will please file this nolL prosequi.
edward @. CARRINGTOE, ~
"0CT. 25, 1855. U. s. Attorney for d. G. -,
Mr.. Darlington said he was glad that an appeal
was to be taken TO the court In Jdnc, In order
that this question might be tested. He did not
want any responsibility not conferred upon him
by law, Neither did he Intend to avoid any re-
sponsibility the law did confer upon him.
Judge Wylie said that order or motion Is In
the form Of u record and the form Of an order
made by the court. II Is not an order OF the
court. The court this morning oyerruled such
an order. You take the position that, as United
States District Attorney you have power to dis
miss q prosecution without permission OF the
court. II you have that power, the clerk is
bound to obey your order.
Mr. CarringtOn said OF course the clerk Is mot
bound to obey the order Of the prosecuting at
torney, because he Is an officer Of the court. But
where the prosecuting officer comes In and says
have no further reason to prosecute this case,
aud orders or moves q nOtLe prose2ut, then the
legal obligation Is upon the Judge to order the
clerk to enter the nOlle proseqW, otherwise the
man is unlawfully detained.
Suppose, for instance, the jury render YER
dict OF not guilty your Honor may order the
Clerk not to enter the verdict, and the Clerk will
be bound to obey, for he is your officer. But
your Honor by doing so would unlawtully de-
tain man In custody. The legal obligation
upon You to require your officer to enter nOlLs
proseIui when the prosecuting ohicer says he
will not and cannot further prosecute the party
Is as strong as when Juror says the party IL not
guilty to require him to enter their verdict
Mr., Bradley: After your Honor's declsion was
rendered examined the record, and saw II did
not present the case as agreed upon between the
District Attorney and myself This paper now
on ale had never been presented to the clerk in
writing, through some omission OF the District
Attorney | desire to know from the court the