Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-02-17
REMARKABLE RECORD BEING
MADE BY 18TH LEGISLATURE
Continued from Page seven.)

them, therefore, pertains the common
law power of nolle prosequi to be ex-
ercised, as in England, free from ju-
dicial control. Indeed, by the better
practice, the court should not even adj
wise the prosecuting officer in the mat
ter / Bish. on Grim. Procedure secs,
1887, 1888. Thus, in Commonwealth V.
Wheeler Mass. 1924, Chief Justice
Parsons in speaking of the entry OF
nolle prosequi in the case, said Il OBJ
serve the nolle prosequi is alleged to
have been entered by the advice of the
Court of Common Pleas. Certainly the
court are not legally competent TO give
any advice on this subject The pow
er of entering a nolle prosequi is to be
exercised at the discretion of the At
tarney who proseeutes for the govern
| ment, and for its exercise he alone is
responsible"
In Commonwealth V. Tuck 20 Pick
366 the court said, THE power to enter
| Il nolie prosequi is held by the attor-
ney general VIRTUE offieii. He exerts
| 1t upon his official responsibility. The
court has no right To interfere with its
| exercise. They can only judge of the
| effect of the Act when done and of the
legal consequences which may follow
from it." In Agnew V. Cumberland
County II S. & r. 95 the Supreme
Court of Pennsylvania said THE nolle
prosequi is never the act of the court
| but of the Attorney General" The
( record of nolle prosequi. in this state
at least, usually reads. The County
Attorney, Cor Attorney GeneraD says
he will no further prosecute this in
dictment. Tor complaint" In the
United States District Courts, the
practice is for the District Attorney to
write upon the back of the indictment
i will no further prosecute this in
dictment.' 1t is the prosecuting off
Ger, and not the judge, who directs the
| making of the entry by the clerk. In
the case of State V Smith 81 Me. $50.
ii is stated. No written order or dec
laration of nolle prosequi was signed
and filed by the Attorney for the State,
but in open court he directed the clerk
TO enter upon the docket the nolIe pro-
seoul as to the second count, which
was accordingly DONE This was held
proper
Further, it is too we'll settled to re-
auire citation of authorities, that this
power of nolie prosequi may be eXer-
cised without the consent and even
against the protest. of the defendant at
any time before a jury is impaneIled
for his trial, and also after verdict OF
guilty and before sentence; out be-
tween the empanelling of the jury and
the verdict the power cannot be exer-
cised without the consent of the de-
fs n61nt ae-
800, Com. V. Smith rs Mass 10, Com. v.
Cain 102 Mass. 467.
1t follows, as said in the case cited
| that after verdict of guilty is render
| ed, the defendant is to be sentenced
upon the melton of the prosecuting at
torney. Indeed, without such motion
! the court will not impose sentence. The
| further prosecution of the case is still
at the discretion of the prosecuting of
| ficer. His power over it only ceases
when sentence is pronounced; and it
does cease then.
In some states statutes have heen en-
acted and sustained by the courts. re-
curing the consent of the court to an
entry OF nollc prosequi by the prose-
cutting officer. thus requiring the court
| to judge of the propriety or expedieney
of the entry. In this state is a some
what similar statute as to prosecutions
for violation of our liquor laws. WHAT
ever may be the power Of the iegisla-
ture and of the courts in other states,
| submit that under the constitution of
Maine the legislature cannot require
the courts to pass upon the propriety
or expediency of dismissing criminal
prosecution by a nolle prosequ and
that the courts, Notwithstanding such
/ statutes, have not the power nor right
to pass upon those questions. Art. Ill
of the Maine Constitution is as follows.
Sec. l. The powers of this govern
ment shall be divided into three dis
! tinet departments, the Legislative,
Executive and Judicial.
Sec. 2. No person or persons belong
ing to one OF these departments shall
exercise any of the powers properly
belonging to either of the others. ex-
cept in the cases herein expressly di-
rected or permitted
Under this explicit language courts