The herald and news. [volume] (Newberry S.C.) 1903-1937, 1911-03-28

COu1pelSIEL. LII Jul OWu DIdIoo IUN
ready method in such circumstances
would ordinarily be for the prosecut-
ing officer to enter mol pros as to
the defendant whose testimony he
wished to use.
THE following rule is laid down by
Bishop, Volume !, Section 1916: In
the United States where prosecutions
are instituted and carried on by
public prosecutor, who acts directly
for the government and protects its
interests, there is an evident proprie-
ty in considering it to be within the
exclusive discretion of this officer to
determine whether or not an accom-
plice should be permitted to turn
States evidence, as it is sometimes ex-
pressed with US, and whether, if he
does, he is afterward entitled to be no
further prosecuted by reason of what
is thus DONE
''It is not easy to say what, in fact,
is the practice on this point in all the
States, but it is believed that, in most
OF them, the prosecuting officer acts
in such cases upon his own discretion,
which is little, if at all, controlled by
the courts.
authorities Cited.
THAT the discretion is reposed in
the prosecuting officer Independently
Of the court in this State is shown in
the Mckee case and others hereinafter
referred to. In the case of Rogers
Us. Hill, % R. l., page 498, it is said:
The practice of entering a nolle pro-
sequi to informations is very ancient,
but to indictments it began in the lav-
ter end Of the reign Of Charles H. It
is further said in this case that there
are three periods Of a prosecution in
which C. nolle proseqri may be enter
ed, before jury is empanelled, while
the case is before the jury and after the
verdict. In the first, it is perfectly
clear that a mol pros may be entered
at the pleasure of the prosecuting Of
fcer; such is the constant practice.
1t may be that the indictment is defec-
tive, and he may wish to procure an
other, he may discover that the evi-
dence will turn out indiferently from
what he expected and he may wish to
vary the charge to make it conform to
the proof, or he may have good reason
for not wishing to prosecute at all.
"'There may be innumerable caus-
es for discontinuing the prosecution,
all Of which he may judge upon his
Official responsibility. In many cas-
es the discontinuance may operate to
the prejudice Of the defendant, but
never to the injury of his legal rights.
It is not to be presumed that this Of
fcer will violate his duty or act op-
pressively.' And it is further said in
the case that he exercises that power
wholly upon his official responsibility,
without the advice or permission of
the court
''In the case Of the State VS.. Thom-
as, rs S. c., 479-48O, the rule in the
Mckee case as to the power to enter
nolle prosequi is reahrnled. In the
case Of the State vs. Cardoza, II S. c.,
1877, it appears that Richard H. Gleav-
es, Samuel J. Lee, Joserihus Wood
ruff, A. o. Jones and Francis L.: Car
doza were indicted for conspiracy.
The attorney general, the Hon: Jas.
Conner, called this case for trial and
entered a nolle prosequi as to the de-
PENDANTS, Samuel J. Lee, Josephus
woodruff and A. o. Jones; Richard H.
Gleaves not having been arrested, the
trial proceeding against Francis Car
doza alone. (See page 201) 1t ap-
pears from the case as recorded that
Gleaves, Woodruff and Jones were
used as States witnesses. It will al
so be noted with interest that three
Of my most distinguished predeces-
sors in the Office, the Hon. Leroy YOU
mans, the Hon. Jones Conner and the
Hon. c. R. Miles appeared as attor-
neys for the State.
During Reconstruction.
'The following quotation from "A
Voice from South Carolina Leland,
throws an interesting light upon the
practice of the prosecuting attorney
in this State granting immunity. It
is in reference to prosecutions for
frauds committed during the Recon-
struction. More than thirty true bills
have been found by grand juries of
Richland county, not very much var
led in their character, and covering a
long list of names. Sometimes five or