Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-02-17


and cannot be given authority BY the
legislature to exercise any other than
| a judicial function, to decide any other
than judicial question, that is, 4
question of law or fact. Whether a
| criminal prosecution Sh I'll be pressed
| to final Judgment, or be discontinued
before final judgment is clearly not a
judicial question, but purely one OF
propriety or expediency to be dtermin-
cd by some officer Of that department
charged with the duty of taking care
that the laws be Faithfully executed :
viz, the executive department. In State
| V. Tufts So n. Fl. 1877, it was said,
/, (Smith j. r. 1887. For obvious reasons
| the functions of the court and the pro-
! scouting officer are entirely distinct.
The court cannot usurp the duties of
his office and say. what cases snail and
| shall not be prosecuted
1t is not here denied that the legisla-
ture may limit the power of the prose-
| cutting officer TO discontinue q criminal
| prosecution, may conflne ii to certain
classes of cases, or to certain states of
| facts; may require the concurrence Of
| the Attorney general or some other ex-
ecutive officer: and indeed may perhaps
| abolish the power altogether 1t is only
contended here that under cur consti-
tuition the courts and Judges cannot be
required, nor authorized, TO interfere
| with the exercise of tho power.
| This power of nollc prosequi, bow
! ever, is not to be exercised capricious-
! y but only for substantial and valid
| reasons, such as the discovery of some
| fatal defect in the complaint or m
dictment; the death or absence of some
| material witness; the discovery of some
| weakness in the evidence for the prose-
| cution or of some evidence for the de-
| Tense sufficient to lalse reasonable
| doubt: the existence of an excited pop
| ula. sentiment which might at the time
| unduly influence 4 jury for or against
| the defendant; or other circumstances
/ which render it unfair either to the
| State or the defendant to bring the
case to trial and judgment A repre-
| hensible practice, however, is said tand
III fear with some TRUTH to have OBJ
| tanned in some counties for the prose-
| cutting officer, even after convictions
| sometimes, to grant a noile prosequi
| in consideration of the defendant 5
| paying into the county treasury such
i
| upon. This practice is contrary to the
| spirit of the law entrusting the power
of nole prosequi to the prosecuting
| officer 1t is a plain, inexcusable usur-
| patien of a power entrusted to the
| courts, the power of determining what
1 the penalty should be within the i'm
it's fixed by the Legislature Some pro-
scouting officers following this practice
are said to attempt TO justify it upon
/ the plea that the county needs the
| money and they fear the court might
| impose Imprisonment rather than u
fine. In other words their plea is that
| the county's need Of money is superb
| or to the full execution OF the law, or
| that they are better judges than the
court of what is an adequate penalty
| for the offense. Either plea is plain
| ly demurrable; needs no answer. 1t wds
| never contemplated that the power of
| nolle prosequi should be used TO fatten
| a county treasury, or to shield a de-
PENDANT from the penalty provided by
/ law for his offense. State Y. Conway 20
/ r. /. go was a case where a nolle
| prosequi had been entered upon the
/ payment of 800 and the costs of the
prosecution. The court said %. 273)
| We are aware that the custom has
obtained to u considerable extent for the
| Attorney general to compromise or set
| tie this class of cases, as we'll as cases
| arising under the liquor law, upon the
| payment of a certain sum OF money to
the State by the defendant; but the
practice is Il vicious one and meets
| with out entire disapproval. There is
no law authorizing. Il sentence, or any
| legal substitute therefor by consent of
parties, without the imposition there
of by the Court
TIE effect, however, of a nollt prose-
| qui for whatever reason granted is
/ simply to discontinue that particular
| prosecution. It is no bar to a new
prosecution for the same offense. The
i prosecuting officer cannot lawfully so
bargain with the defendant He cannot
bind his successor nor any one, not
even himself. TO institute new
| prosecution. To undertake to do so
would be to attempt to usurp the par
doning power which is vested exciu-
sively in the governor A defendant
| obtains no immunity from subsequent
| prosecution for the same offense, how
ever much he pay as condition of
Il
| the assurance of the prosecuting officer
that he shall not he further troubled
| therefor. He may be re-indicted at
once without violation of any oblga-
| ton on the part of the State or any
of its officers.
| From all the foregoing it should be
| evident that the Office of County At
| torney is one of power and Importance
| The enforcement. or non enforcement,
of the laws depends as much upon the
| County Attorney as upon the Sheriff.
| and even more. The office should be
| entrusted only te able, honest and ex-
perienced lawyers WHO will enforce the
laws vigorously and efficiently There
should also be provided means for the
| prompt removal from office of County
| Attorneys who prove to be unfaithful
or Inefficient Further. | think as a
| check upon any disposition to abuse
| the power of disseminating prosecu-
tons, the County Attorney should be
required to file in each case of a nolle
prosequi signed statement of the
facts upon which he bases his action.