Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-10-25

irp d IN that case, nor would IL have been law
him of this ofense upon this trial Theindict-
ment is therefore before the Court as though
there had been no trial Tor the murder. The
he pleaded 20 this Indictment. The District
Attorney now moves the Court to enter nolI,
proSeqss in the case Of rape The nolle pros, II
and will put an end to this prose,
cution. The prosecution cannot be ended
unless the Court so orders IL. This motion i'm
plies that much. II Is an application in effect
by the District Attorney, to the Cont. thai the
Court shall make his order. Ii the sole an
thority in this matter Rested with the District
Attorney ne might At his own discretion order
the clerks TO dismiss the proceeding without
applying to the Court; This he does moi
purpose, but asks the Court 70 enter this ,olr
pros. This responsibility is with the Court,
and the Court ought not to make the order
without satisfactory reasons shown In the
Queen agt. Parker Modern Rep case IIs
the Court of the Queens Bench directed that
''noue prosequ, ought not TO be entered upan an
Indictment, but upon motion in court and
leave thereby obtained" Holt was Chief JUS
tice.at that time and the decision entitled to
gfe1t respect. The Sovereign herself was pre-
sumed 10 be sitting in her own court Her
attorney, Of his own VIII, could not ter
inmate q prosecution in which the public
had an interest, and which had been
begun in her name and by her authority,
without her leave given through the judges
who represented her person in the court. 1t
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 permission. The act of 9th of
February, 1901, sec. o. brightly, y. 1861 pro-
yides for the appointment of a District Attor-
ney for the District Of Columbia, who shall
take the oath and perform all the duties re-
quired of the district attornes OF the United
States. The act of 2ith of September, 17Sa, sec
ton IS, brightly, p. 221,) defines in brief Ian
tornies OF the United States as follows :-DThere
shall be appointed in each district a meet per-
son, learned in the law, TO act as attorney for
the United States in such district, who shall be
sworn or affirmed TO the faithful execution of
his office, whose duty IL shall be to prosecute in
such district all delinquents for crimes and Of
fences eogniZable 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 can
not compromise, settle, or discontinue any
prosecution without leave obtained from the
Court, and even in the latter case-that of dis
continuing a prosecution by entering a nolIe
Prosequi-the act is not his act, but the act aud
judgment of the Court. He may make a mo-
ton to the Court for that purpose, as has been
done in this case, but there can be no judgment
act Of the Court itself This motion is power
less except to bring the subject before the Court
for decision. If, then, the nolle prosequi be,a
judgment of the Court, the Court has the right
and the power to refuse to make the order.
unless il be satisfied as TO its propriety.
/ am aware that the late Chief Justice fancy,
States, in an opinion dated 18th December, 1881,
expressed a different opinion, but even in that
opinion he conceded that the Court might
r,fuse, for satisfactory reasons, TO direct the
nOtle proSequi TO he entered on the motion of the
District Attorney, and il seems to me that this
qualification of the power of the District Attor-
ney proves that the power does not belong 70
the District Attorney at all, but belongs TO the
Court alone.
In the present case TIE District Attorney has
not succeeded in satisfying the Court OF the
lafx f.f h.
whatever have been filed, and none have been
given in any form, except that the defendant
has already been tried and acq uitted on the in
dictment against him for the murder of Octayie
Rosseau, and that the present indictment for
rape was found upon the same evidence by
the Grand Jury. In answer to these reasons.
i have 10 say: list. That the acQuittal in that
case was most unexpected by the Court. I'd.
That in the present case the defendant has not
yet been arraigned, nor has he pleaded to the
Indictment, and il may be that when
arraigned he will plead guilty to the indct-
meut and therefore the proper time for enter
ing the nolle prosequi has not arrived. 3D. 1t
is possible and even probable that before the
time of his trial upon the present indictment
arrives new evidence may be discovered to es-
tablish his guilt 4th. That the crime in ques-
ton was one of the most horribly fiendish that
mas ever shocked the sensibilities or awakened
the fears of any community for the safety of
the persons and lives of their young and help
less children; and that this prosecution ought
not to be dropped and this defendant turned
loose upon the community so long as there
remains good grounds for a reasonable suspi-
cion that after all that has taken place on the
trial for murder, he may ultimately be discov-
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 WYLIK
Judge Wylie also overruled the motion Of
Lusby's counsel to quash the writ on which
the accused had been rearrested.
Court nv hQ u
soner's counsel yesterday to certify the ques-
ton raised whether, when the District Attor-
in a certain case, it is within the power of the
Court TO prohibit IL and control such entry to
the court in general term, it was granted
Upon inspection of the record by the prison.
ers counsel after the opinion was announced
it appears the District Attorney had omitted to
give the UTiten order to enter the nOlIe prosequi
in the case and upon which the whole question
on appeal is expected to depend. The counsel
Immediately procured this written order and
hled 1t with the clerk. The order is in the fol-
lowing words:
for rape.-And now that is 10 say, on Dis 18th
day of October, in the year 1865, in on court
cometh the u. 3 District Attorney, EIS!ard q.
Darlington, who for the United States IN this
behalf prosecutor and saith that he, the said
District Attorney, will not further prosecute
the said John 4. Lusby on behalf of the said
United States on the indictment in the above
entitled case. Therefore let all further pro-
ceedings be altogether STAYED here in court
against him, the said John F. Lusby, upon the
Indictment aforesaid.
EDw. q. CARRINGToN, District Attorney.
This writ was endorsed: 1.-THE Clerk will
please fill this nolle proseqne."
Oct. 18th. 1865. Eco, S.D.A.
After the usual business of the Court had
been concluded the District Attorney stated that
the counsel for the accused proposed to carry
the case before the Court in general term when
the question was to be tested, and he was glad
OF it, He did not intend TO aveid any respon-
sibility Of which the law does not relieve
him.
Judge Wylie said that the paper was in the
form of an order made by the Court Ii was
not such order, and the Court had overruled il
this morning. His position as District Attorney
was this: He had no power to dismiss a pros
ecution without the permission Of the Court
Ii he had that power, the clerk would be bound
to obey him.
MIR. Darlington said that OF course the clerk
was not bound to obey the District Attorney
because he is an officer of the Court When a
prosecuting officer comes In and says that he
has no further reason to prosecute a case, and
orders nOlle pros, then the legal obligation is
upon the judge TO order the clerk TO enter a
notfe pros, otherwise the man is unIawfully
detained. For instance Jury may render q